Why Originalism Needs Critical Theory: Democracy, Language, and Social Power
24 Pages Posted: 8 Jul 2015
Date Written: July 6, 2015
So much of the debate over originalism and its merits has focused on determining the meaning of the text that commentators have overlooked the potential problems with that meaning in itself, whatever it turns out to be. Suppose for the sake of argument that we can determine the original meaning of some bit of text. Our language at any given time provides a snapshot, not merely of what is meant by some string of words, but of who is in power, who is left out, and what is thought important. Uncovering the meaning of a statute written in a language that is itself undemocratic, then, is no help to originalists if they take seriously their own commitment to democracy. To put this another way, the semantic context of the words that end up in statutes and constitutions is not politically neutral, so a theory like originalism that relies on semantic context for interpretation will not be politically neutral either. This Note presents a problem for originalism’s semantic theory as applied to its political theory instead of the other way round.
I argue here that the existence of hermeneutical injustice as a pervasive feature of our collective linguistic and conceptual resources undermines the originalist task at two levels: one procedural, one substantive. First, large portions of society were (and continue to be) systematically excluded from the process of meaning creation when the Constitution and its Amendments were adopted, so originalism relies on enforcement of a meaning that was generated through an undemocratic process. Second, the original meaning of some words in those texts may be substantively objectionable as a result because they fail to capture the relevant experiences of affected people at the time even if they accurately capture the conceptual understanding of reasonable people at the time, and this substantive failing may infect the text’s democratic legitimacy. To the extent that it can be overcome, overcoming this epistemic problem will require originalists to take seriously the insights of critical theory, understood in this context as a normative inquiry into the historical context of the language and meaning of statutory text. Because originalists are already committed to a nominally descriptive inquiry into this context, and because this nominally descriptive inquiry masks the inherently normative aspects of the hermeneutical landscape, the switch to an explicitly normative inquiry may prove quite painless.
Keywords: law, legal theory, feminism, epistemology, originalism, textualism, epistemic injustice, critical theory
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