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Originalism's Constitution

Grégoire Webber

Queen's University - Faculty of Law; London School of Economics - Law Department

October 1, 2009

THE CHALLENGE OF ORIGINALISM, G Huscroft and BW Miller,eds., Cambridge University Press, 2011
LSE Legal Studies Working Paper No. 19/2009

This essay seeks to explore originalism as something other than a theory of interpretation. This might strike one as odd. After all, if originalism is a theory of interpretation, how else might one seek to understand it? Yet, conceiving originalism as something other than a theory of interpretation may reveal insights that otherwise would remain beyond one’s immediate grasp. Recognising this potential, I reflect on how originalism can be understood, not as a theory of interpretation, but rather as a constitution. In short, the query explored is: What is an original constitution? What model of a constitution does originalism contemplate? Now, attempting to design an original constitution may suffer from the same contests facing any account of originalism. Different originalists make different commitments, and any attempt to select among them will be vulnerable to criticism. Despite differences between originalists, three commands and commitments can fairly be attributed to originalism without raising too much contest: the original constitution is written at the founding and changed only by the amendment procedure it sets out, is law insofar as it provides rule-like prescriptions, and occupies a delimited domain, leaving the rest to democratic activity. The model of an original constitution here elaborated seeks to provide a model of a fictional constitution that satisfies, perhaps to a fault, the key commitments and commands of originalism. It seeks to bring to light the commands and commitments originalism would have of us, and of constitutions.

Number of Pages in PDF File: 29

Keywords: constitutional law, interpretation, originalism, constitutional construction

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Date posted: January 5, 2009 ; Last revised: September 8, 2011

Suggested Citation

Webber, Grégoire, Originalism's Constitution (October 1, 2009). THE CHALLENGE OF ORIGINALISM, G Huscroft and BW Miller,eds., Cambridge University Press, 2011; LSE Legal Studies Working Paper No. 19/2009. Available at SSRN: http://ssrn.com/abstract=1322823

Contact Information

Grégoire Webber (Contact Author)
Queen's University - Faculty of Law ( email )
Macdonald Hall
Kingston, Ontario K7L3N6
HOME PAGE: http://law.queensu.ca/faculty-research/faculty-directory/webber
London School of Economics - Law Department ( email )
Houghton Street
London, WC2A 2AE
United Kingdom
HOME PAGE: http://www.lse.ac.uk/collections/law/staff/gregoire-webber.htm

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