An Originalism for Nonoriginalists

Abstract:     
In this paper, I claim that, far from being defeated in the 80's, originalism is the prevailing method of constitutional interpretation (Part I), but it is an originalism based on an objective original meaning rather than on a subjective original intent (Part II). The imperative for this form of originalism lies, not in consent or popular sovereignty, but in a two step analysis (Part III): First, a commitment to "writtenness" akin to that of written contracts begets a commitment to originalism. Second, we are bound to respect the original meaning of a constitution if the written text, properly interpreted, provides for a law making process which can claim constitutional legitimacy. Legitimacy, by my account, is the ability of lawmaking processes to provide an assurance that constitutionally valid statutes are also binding in conscience. I then explain (Part IV) how this form of originalism, justified in this way, responds to the criticisms that had, until now, persuaded me that I was not an originalist.

Working Paper Series