Abstract

http://ssrn.com/abstract=962142
 
 

Citations (2)



 
 

Footnotes (15)



 


 



Original Interpretative Principles as the Core of Originalism


John O. McGinnis


Northwestern University - School of Law

Michael B. Rappaport


University of San Diego School of Law


San Diego Legal Studies Paper No. 07-82
Northwestern Public Law Research Paper No. 962142
Constitutional Commentary, 2007

Abstract:     
This brief essay, written as part of a symposium on Jack Balkin's article on Abortion and Original Meaning, critiques Professor Balkin's conception of originalism. We argue that Balkin presents a false dichotomy - either embrace abstract principles whose meaning is almost infinitely malleable or confine the Constitution to the applications the Framers imagined. We believe there is middle way that is also a better way. In our view, the Constitution's original meaning is informed by, but not exhausted by, its original expected applications. In particular, the expected applications can be strong evidence of the original meaning.

In this brief reply essay, we first argue that Balkin lacks a strong justification for following originalism of any kind. We also show that the best justification for originalism - that originalist interpretation is most likely to lead to good consequences - suggests that one should follow the principles of interpretation that a reasonable person at the time of the framing and ratification thought would be applied to the Constitution. Second, we briefly address the role of precedent in constitutional originalism. While Balkin suggests that reliance on precedent is a problematic move for originalists, we argue that the original meaning of the Constitution allows for the use of precedent.

Finally, we show that a reasonable person at the time of the Framing was more likely to have embraced interpretative principles that considered expected applications than Balkin's abstract originalist principles. People at the time of the enactment of the Constitution would have been unlikely to eschew expected applications because such applications can be extremely helpful in discerning the meaning of words. Risk averse citizens would be unlikely to adopt interpretative principles of the kind Balkin advocates, because such principles do not protect the nation against the effects of social movements that pursue undesirable policies.

Number of Pages in PDF File: 10

Keywords: Constitutional Law, Jurisprudence

Accepted Paper Series


Download This Paper

Date posted: February 8, 2007  

Suggested Citation

McGinnis, John O. and Rappaport, Michael B., Original Interpretative Principles as the Core of Originalism. San Diego Legal Studies Paper No. 07-82; Northwestern Public Law Research Paper No. 962142; Constitutional Commentary, 2007. Available at SSRN: http://ssrn.com/abstract=962142

Contact Information

John McGinnis
Northwestern University - School of Law ( email )
375 E. Chicago Ave
Unit 1505
Chicago, IL 60611
United States
312-503-3235 (Phone)
Michael B. Rappaport (Contact Author)
University of San Diego School of Law ( email )
5998 Alcala Park
San Diego, CA 92110-2492
United States
Feedback to SSRN


Paper statistics
Abstract Views: 2,449
Downloads: 439
Download Rank: 35,572
Citations:  2
Footnotes:  15

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo8 in 0.235 seconds