On Pluralism within Originalism
THE CHALLENGE OF ORIGINALISM: THEORIES OF CONSTITUTIONAL INTERPRETATION, Grant Huscroft and Bradley W. Miller, eds., Cambridge University Press, 2011
14 Pages Posted: 2 Jun 2012
Date Written: June 1, 2011
The existence of multiple modalities of constitutional argumentation in judicial and legal practice has fed skepticism about the viability of originalist theories of constitutional interpretation. Why should we convert a pluralistic social practice in which there are multiple available forms of constitutional argument into an exclusionary one, in which originalist arguments trump all others?
This paper attempts to clarify the place of pluralism within originalism. Originalism need not imply the irrelevance or inappropriateness of other forms of constitutional argumentation, and the existence of a pluralistic discourse in constitutional interpretation does not by itself suggest that originalism is radically at odds with current practice. Originalists should, in principle, be open to the use of various forms of constitutional argumentation so long as such arguments are disciplined to the overarching goal of discovering and implementing the original meaning of the Constitution. What they must resist is the appeal to alternative modes of constitutional arguments as possible trumps to known constitutional meaning, but they can embrace a variety of forms of constitutional argumentation that can supplement and help illuminate original meaning.
Keywords: originalism, pluralism, constitutional interpretation, Griffin, modalities
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