15 Pages Posted: 19 Jun 2017 Last revised: 22 Aug 2017
Date Written: June 17, 2017
Originalism is not about the text. Though the theory is often treated as a way to read the Constitution's words, that conventional view is misleading. A society can be recognizably originalist without any words to interpret: without a written constitution, written statutes, or any writing at all. If texts aren't fundamental to originalism, then originalism isn't fundamentally about texts. Avoiding that error helps us see what originalism generally *is* about: namely, our present constitutional law, and its dependence on a crucial moment in the past.
Keywords: originalism, text, original meaning, original law, constitution, interpretation, unwritten law
JEL Classification: K10
Suggested Citation: Suggested Citation
Sachs, Stephen E., Originalism Without Text (June 17, 2017). Yale Law Journal, Forthcoming; Duke Law School Public Law & Legal Theory Series No. 2017-46. Available at SSRN: https://ssrn.com/abstract=2988019