Originalism is Dead...Long Live Identicalism!

73 Pages Posted: 3 May 2017 Last revised: 4 May 2017

David E. Weisberg

Independent

Date Written: May 2, 2017

Abstract

The late Justice Antonin Scalia deplored ill-founded Court opinions purporting to establish that “my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.” He argued strenuously against what can be called juristocracy—rule by judges—and in favor of the rule of law. His theory of Originalism, with its presumption of time-dated original meanings for words and phrases in the Constitution, was designed specifically to restrain jurists from crossing the sometimes indistinct but always important boundary that separates interpreting the Constitution from amending it.

But, in formulating Originalism, Justice Scalia botched the job. The theory is irreparably flawed, because it generates:

The Paradox of Originalism: If the antiquity of the Constitution justifies the rebuttable presumption that some or all of the words or phrases in the Constitution have time-dated original meanings that differ from their current meanings, then the roughly equivalent antiquity of secondary literary materials that are roughly contemporaneous with the Constitution justifies the rebuttable presumption that some or all of the words or phrases in those secondary literary materials have time-dated original meanings that differ from their current meanings.

The Paradox ensnares the conscientious Originalist in an infinite regress.

The close association of the idea of an objectively-determined rule of law with Originalism ultimately serves only to discredit the former. Those who would advance the rule of law and resist a “living” Constitution ironically but actually work against those goals by propping up an inherently flawed Originalism.

Originalism was founded on the rebuttable presumption that words and phrases in the Constitution have time-dated original meanings that differ from their current meanings. We can avoid all of Originalism’s flaws, and still retain an objectively-determined approach to constitutional interpretation, if we adopt the converse presumption: words and phrases in the Constitution are presumed to have original meanings that are identical to their current meanings, unless the contrary is established. I present such an approach, which I call Identicalism.

Keywords: Originalism, original-public-meaning originalism, Justice Antonin Scalia, Paradox of Originalism, Identicalism

Suggested Citation

Weisberg, David E., Originalism is Dead...Long Live Identicalism! (May 2, 2017). Available at SSRN: https://ssrn.com/abstract=2961965

David E. Weisberg (Contact Author)

Independent ( email )

No Address Available

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