Reclaiming the Constitutional Text from Originalism: The Case of Executive Power

45 Pages Posted: 24 Jan 2018 Last revised: 21 Feb 2018

Victoria Nourse

Georgetown University Law Center

Date Written: February 2018

Abstract

There are consequences to theories in a world questioning the power of the President. For decades, some originalists, including Justice Scalia, maintained that the President enjoys “all” executive power. Of course, this is not the Constitution’s actual text (which refers to “the” executive power, not “all” executive power) — but a highly contestable, and potentially dangerous, addition of meaning to the text. As I demonstrate in this Article, adding to the actual text of the Constitution is common in the originalist literature on executive power, whether the precise question is the President’s removal power, the President’s power to refuse to enforce the law, or the President’s obligations under the Emoluments Clause. Using elementary principles from the philosophy of language — principles that apply to all communication — I explain how originalist interpreters in this area “pragmatically enrich” the text, without articulating or justifying those additions and without seeking to test those meanings against the full text of the Constitution. Before one gets to history, the originalist has assumed a unit of textual analysis — a word, a clause, a paragraph — that may effectively enrich the meaning to reflect the interpreter’s preferred policy position. If this is correct, originalists must theorize the “interpretation zone,” a putatively neutral place from which historical inquiries are launched, and explain why interpreters may add meaning by pragmatic enrichment in this zone — particularly if those meanings are falsified by the rest of the Constitution. Perhaps more importantly, originalism’s opponents need to start talking about how to reclaim the actual text of the Constitution.

Keywords: constitutional law, legislative theory, legislative history, originalism

Suggested Citation

Nourse, Victoria, Reclaiming the Constitutional Text from Originalism: The Case of Executive Power (February 2018). California Law Review, Vol. 106, No. 1, 2018. Available at SSRN: https://ssrn.com/abstract=3103948 or http://dx.doi.org/10.2139/ssrn.3103948

Victoria Nourse (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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