27 Pages Posted: 21 Apr 2016 Last revised: 8 Mar 2017
Date Written: April 13, 2016
This essay sketches an originalist methodology using ideas from legal theory and theoretical linguistics, including the distinctions between interpretation and construction and between semantics and pragmatics. The Essay aims to dispel a number of misconceptions about the methods used by originalists. Among these is the notion that originalists rely on dictionary definitions to determine the communicative content of the constitutional text. Although dictionaries may play some role, the better approach emphasizes primary evidence such as that provided by corpus linguistics. Another misconception is that originalists do not consider context; to the contrary, the investigation of context plays a central role in originalist methodology.
Part I of this Essay articulates a theoretical framework that draws on ideas from contemporary legal theory and linguistics. Part II investigates methods for determining the constitutional text’s semantic content. Part III turns to methods for investigating the role of context in disambiguating and enriching what would otherwise be sparse semantic meaning. The Essay concludes with a short reflection on the future of originalist methodology.
Suggested Citation: Suggested Citation
Solum, Lawrence B., Originalist Methodology (April 13, 2016). Available at SSRN: https://ssrn.com/abstract=2764466
By Richard Kay
By Jack Balkin
By Jack Balkin