Originalism All the Way Down?

18 Pages Posted: 14 Dec 2014 Last revised: 9 Jan 2016

See all articles by Kurt T. Lash

Kurt T. Lash

University of Richmond School of Law

Date Written: December 12, 2014

Abstract

In their new book, ORIGINALISM AND THE GOOD CONSTITUTION, John McGinnis and Michael Rappaport attempt to vanquish what they call constructionist originalism with an approach that I call methodist originalism. Unlike constructionist theories, which allow for non-originalist construction of underdetermined texts, methodist originalism proposes filling in the historical gaps with what McGinnis and Rappaport claim were the originally accepted methods of interpretation. This is originalism all the way down.

It’s a creative effort, and one that appropriately rejects some of the more latitudinous originalist theories currently in play. Unfortunately, the same history McGinnis and Rappaport rely upon fatally undermines their effort to associate every constitutional text with its own originally accepted method of interpretation. The Founding was a time of methodological dispute as legal theorists struggled to reconcile the content of common law with the commitments of popular sovereignty and American-style federalism. Although McGinnis and Rappaport have introduced an important consideration in determining the original meaning of constitutional texts, gaps remain in both our understanding of both original textual meaning and original interpretive methodology. The dragon of construction is not yet vanquished.

Suggested Citation

Lash, Kurt T., Originalism All the Way Down? (December 12, 2014). Constitutional Commentary, Vol. 30, p. 149, 2014; University of Illinois College of Law Legal Studies Research Paper No. 15-11. Available at SSRN: https://ssrn.com/abstract=2537469

Kurt T. Lash (Contact Author)

University of Richmond School of Law ( email )

28 Westhampton Way
Richmond, VA 23173
United States

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