Legal Theory Lexicon 071: The New Originalism

Lawrence B. Solum 

Georgetown Law
February 24, 2013

Abstract:      
The entry in the Legal Theory Lexicon series describes the New Originalism. Originalism can be viewed as a family of theories organized around two core ideas: (1) The Fixation Thesis, the factual claim that the linguistic meaning of the constitution is fixed at the time each provision is framed and ratified, and (2) The Constraint Principle, the normative claim that the original meaning should constraint constitutional practice. To these two core ideas, the New Originalism adds two others: (1) The Public Meaning Thesis, the claim that the original meaning of the constitutional text is its public meaning, and (2) the Interpretation-Construction Distinction, the claim that constitutional practice consists of two distinct activities: (a) Interpretation is the discovery of linguistic meaning, and (b) Construction is the determination of legal effect, including both constitutional doctrine and the decision of constitutional cases. Criticisms of the New Originalism are briefly summarized.

Number of Pages in PDF File: 4

Keywords: constitution, constitutional law, constitutional theory, interpretation, construction, originalism, new originalism

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2223663