On What Distinguishes New Originalism from Old: A Jurisprudential Take

32 Pages Posted: 7 Sep 2013 Last revised: 4 Oct 2013

See all articles by Mitchell N. Berman

Mitchell N. Berman

University of Pennsylvania Law School

Kevin Toh

University College London

Date Written: August 8, 2013


What is new originalism and what distinguishes it from old? A principal benefit of recent scholarship that aims to clarify the nature of originalism is to improve our collective ability to identify precisely what is in dispute between originalists and nonoriginalists. In this symposium contribution, we observe that whereas earlier originalists most commonly couched their central theses in terms of what judges should do, many or most contemporary originalists advance claims about what the law is. Stated differently, old originalism was chiefly a theory (or a family of theories) of constitutional adjudication, whereas new originalism is chiefly a theory (or a family of theories) of constitutional law. More particularly, newer originalists tend to maintain that our constitutional law (at least in the absence of judicial precedents squarely on point) is fully determined or constituted by semantic facts — namely, the meanings of the inscriptions in the constitutional text. This essay is devoted to characterizing the distinction between theories of adjudication and of law, defending our characterization, and highlighting its importance. Along the way, we take notice of an important but as-yet little noticed intramural disagreement among self-described “New Originalists” regarding what the purpose or output of constitutional interpretation is. On this question, we end up siding with Keith Whittington, or at least a reconstructed version of Whittington's position, against the view that Larry Solum and Randy Barnett endorse. We end the essay with some admittedly tentative thoughts regarding the formidable theoretical obstacles that confront originalist theories of constitutional law.

Keywords: originalism, nonoriginalism, constitutional interpretation, constitutional construction

Suggested Citation

Berman, Mitchell N. and Toh, Kevin, On What Distinguishes New Originalism from Old: A Jurisprudential Take (August 8, 2013). Fordham Law Review, Forthcoming; U of Texas Law, Public Law Research Paper No. 537. Available at SSRN: https://ssrn.com/abstract=2321462

Mitchell N. Berman (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

Kevin Toh

University College London ( email )

Gower St
London WC1E OEG, WC1E 6BT
United Kingdom

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