Making the Premises about Constitutional Meaning Express: The New Originalism and Its Critics
31 BYU Journal of Public Law No. 1, page 111, Forthcoming
122 Pages Posted: 1 Apr 2017
Date Written: January 1, 2017
Perhaps the hottest front in the half-century-old debate over originalism turns on the introduction of semantics, pragmatics, and other techniques from the philosophy of language and linguistic theory. While in some ways these arguments simply build on the now familiar distinction between interpretation and construction defended by the New Originalism, the newest of the New Originalists purport to break new ground in the debate. The originalists argue that they have rehabilitated originalism so as to avoid the criticisms that had been leveled against earlier versions, including those leveled against earlier versions of New Originalism. The newest critics argue that the sophisticated tools of linguistic philosophy, when properly applied in their hands, offer new and decisive challenges to originalism, including the newest of the New originalisms. While the arguments on both sides of the debate have been welcomed as a new and exciting intellectual development by the academy, this article demonstrates why these efforts are yet another wrong turn to a dead end in the debate.
This article thus performs a critical mission. It argues that the linguistic claims of the most recent wave of the New Originalism like Solum and Soames and those of their most recent philosophically sophisticated critics like Marmor and Fallon fail to advance the debate over originalism. Each side places demands on philosophical argument that cannot be met. Philosophical argument cannot perform that role as a matter of our constitutional practice and as a matter of the nature of philosophical argument. The philosophical sophistication of the newest of the New Originalists and their critics is only another Ptolemaic epicycle in a debate that should be abandoned, not pursued.
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