Originalism Without Text

13 Pages Posted: 19 Jun 2017 Last revised: 27 Oct 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

Sachs, Stephen E., Originalism Without Text (June 17, 2017). Yale Law Journal, vol. 127, pp. 156-168 (2017); Duke Law School Public Law & Legal Theory Series No. 2017-46. Available at SSRN: https://ssrn.com/abstract=2988019

Stephen E. Sachs (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-8542 (Phone)

HOME PAGE: http://law.duke.edu/fac/sachs

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