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Originalism and Constructive Interpretation

38 Pages Posted: 10 Sep 2014  

David O. Brink

University of California, San Diego; University of San Diego School of Law

Date Written: September 3, 2014

Abstract

This essay argues that a number of Dworkin’s signature jurisprudential claims -- including his criticism of Hart’s model of rules, his moralized reading of the Constitution, and his defense of constructive interpretation -- cohere reasonably well around a distinctive form of originalism -- originalism of principle. This may seem surprising because originalist insistence on fidelity to the original meaning of constitutional language or the intentions of the framers is often seen as the antithesis of the sort of moralized interpretation that Dworkin defends, and Dworkin explicitly criticizes some forms of originalism. But there are different ways of understanding meaning and intention and fidelity to either. Dworkin consistently opposed conceptions of interpretation that would constrain the meaning of legal provisions by conventional beliefs about the extension of the language in which those provisions are formulated or by the framers’ conceptions of the normative concepts underlying those provisions. That opposition reflects a plausible view about the semantics of legal disagreement. If we associated originalism with these discredited semantic assumptions, then Dworkin should be a critic of originalism. But once we are clear about the semantic mistake such interpretive conceptions make, we can understand why Dworkin was attracted to a different form of originalism -- an originalism of principle according to which interpreters must ascertain the best conception of the normative concepts that the framers of the provision introduced. This kind of originalism of principle can be understood either as fidelity to the correct public meaning of legal provisions or as fidelity to the abstract intentions of the framers of those provisions. Either way, it implies that the interpretation of legal provisions employing normative concepts cannot be done without making and defending substantive normative commitments about the extension of those concepts. Originalism of principle is an important part of constructive interpretation, but it does not exhaust constructive interpretation, because constructive interpretation includes in its account of fit a role for precedent and continuity of interpretive conception. But within constructive interpretation interpretive history and sameness of conception have only pro tanto significance that can be overridden when a rival conception is sufficiently normatively superior.

Keywords: concept and conception, constructive interpretation, interpretation, legal disagreement, originalism, precedent, Ronald Dworkin, semantics

JEL Classification: K10

Suggested Citation

Brink, David O., Originalism and Constructive Interpretation (September 3, 2014). San Diego Legal Studies Paper No. 14-167. Available at SSRN: https://ssrn.com/abstract=2491031 or http://dx.doi.org/10.2139/ssrn.2491031

David O. Brink (Contact Author)

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HOME PAGE: http://philosophyfaculty.ucsd.edu/faculty/dbrink/

University of San Diego School of Law ( email )

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