The Gravitational Force of Originalism

Randy E. Barnett 

Georgetown University Law Center
February 15, 2013

Fordham Law Review, Forthcoming
Georgetown Public Law Research Paper No. 13-010 
Abstract:      
In part I of this essay, prepared for the Fordham conference on “The New Originalism and Constitutional Law,” I describe four aspects of the New Originalism: (1) The New Originalism is about identifying the original public meaning of the Constitution rather than the original framers intent; (2) The interpretive activity of identifying the original public meaning of the text is a purely descriptive empirical inquiry; (3) But there is also a normative tenet of the New Originalism that contends that the original public meaning of the text should be followed; (4) Distinguishing between the activities of interpretation and construction identifies the limit of the New Originalism, which is only a theory of interpretation. In part II, I then discusses how originalism can influence the outcome of such cases as D.C. v. Heller, McDonald v. Chicago, and NFIB v. Sebelius. I suggest that, so long as there are justices who accept the relevance of original meaning, originalism can exert a kind of “gravitational force” on legal doctrine even when, as in McDonald and ​NFIB​, the original meaning of the Constitution appears not to be the basis of a judicial decision.

Keywords: Originalism, Supreme Court, Congress, Commerce Clause

JEL Classification: K00, K30, K39

Accepted Paper Series 


Full text available: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2218432