by Mike Rappaport
Last week, I posted a couple of pieces that discussed a recent scholarly article. A couple of commentators wrote that the posts were a bit difficult to understand, so I thought I would discuss some of the ideas that underlay the posts.
One of the significant issues within originalist scholarship is how originalist theory has changed over time. It has been assumed that originalists writing in the 1960s – 1980s exhibited a certain pattern of arguments and positions, and that originalists since that time have exhibited a different pattern. The question is how these two positions have differed.
The people writing in first period mainly included Raoul Berger, Robert Bork, William Rehnquist and Lino Graglia.
The people writing in the second period are a much more numerous group. If we just focus on those who write about originalist theory (as opposed to those who do originalism generally), then some of those people include Larry Alexander, Jack Balkin, Randy Barnett, Gary Lawson, John McGinnis, Larry Solum, Keith Whittington, and myself.
One transitional figure of immense importance is Justice Scalia, who started publishing material about originalism in the middle 1980s.
What then are the importance differences between the scholarship in these two periods? Since some people writing today exhibit strong similarities with people writing in the earlier period, we should recognize that there will be exceptions to the descriptions. We are looking for dominant patterns, not patterns that are universally followed.
Here are my thoughts:
One clear distinction is that the old originalists generally focused on original intent, whereas most new originalists talk about original public meaning (that is, the original meaning of the text).
A second distinction is that old originalists often focused on democracy (and often on judicial restraint), whereas new originalists tend to focus less on this value, justifying originalism based on other values such as justice, good consequences, or popular sovereignty.
A third distinction is that old originalists almost always made normative arguments for their originalism, such as that originalism furthered democracy or respected the law. New originalists sometimes do not make such arguments. Instead, they argue that the original meaning is the correct meaning or that interpreting a document necessarily involves determining its original meaning. These originalists, such as Gary Lawson or Larry Alexander, do not present normative arguments for following the original meaning.
A fourth distinction is that old originalists often argued as if originalism yields results in all cases, whereas many new originalists believe that the original meaning can run out as to ambiguous or vague language. In these cases, these new originalists believe that one must resort to construction, which does not involve following the original meaning but going outside the original meaning.
Based on this criteria, I am somewhere in the middle between the old and new originalists, but a bit closer to the new originalists. First, I generally favor a (soft) version of original public meaning because I believe the original interpretive rules were largely those of original public meaning. Second, I don’t focus significantly on democracy, but instead on the overall constitutional structure which protects democracy and individual rights, and limits government through the separation of powers and federalism. Third, I make both normative arguments and arguments about the correct way of determining the meaning of a document. Finally, I am skeptical about construction, believing it is very likely that the original interpretive rules can yield answers to the great majority of, if not all, questions.
In the end, perhaps the biggest difference between the old originalists and the new originalists is that the latter are far more academically sophisticated. The distinctions they draw are more carefully articulated and better connected with theoretical considerations. This is, of course, what one would expect when a particular area is developed in the academy.