Originalism: Lessons from Things that Go Without Saying

Abstract:     
After setting the originalism "stage" and discussion of some of its tribulations, the article turns to the problem of constitutional silences. These come in many shadings, and the article concentrates on three that illustrate different sorts of problems: 1) the failure of the Guarantee Clause to provide a more precise definition of a "republican form of government"; 2) the deafening silence about any role for political parties in the nation's politics and governance; and 3) the absence of guidance about "discretion" to be exercised by presidential elections, which surfaces these days as the problem of the "faithless elector," one who votes in the electoral college contrary to pre-election commitment. These help illustrate how scant are the resources originalism will often bring to the enterprise of constitutional interpretation. The article is an adaptation of the 2008 Nathaniel L. Nathanson Memorial Lecture at the University of San Diego Law School.

Keywords: originalism, republican form of government, political parties, presidential electors, faithless electors

JEL Classifications: K19

Accepted Paper Series