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Thursday, August 16, 2007

Is the Originalism/Non-Originalism Divide Meaningful?

Co-blogger Rick Garnett finally shamed me into reading Stephen Griffin's post on originalism at Balkinization.   The point of the post (other than giving some useful historical context for the development of originalism) seems to be to suggest that the originalism/non-originalism is not meaningful or is flawed.  Admittedly, there isn't really much of an argument in the post, so much as a suggestion. 

But even the mere suggestion is provocative enough to require further elaboration, I'd think, largely because it does seem useful to divide theories of constitutional interpretation on the basis of the modalities of interpretation they privilege.  Even if many of us are, say, Bobbitian pluralists now (and think original meaning is important, along with precedent, history, text, structure, prudential considerations, ethical considerations), I'd think the originalist/non-originalist line would be useful in helping us create a hierarchy of different modalities.  I spell this out somewhat in my essay on The Perpetual Anxiety of Living Constitutionalism.  But I don't really think that lacking a unified account of the constellation of modalities and their position in the hierarchy appropriate to constitutional interpretation is a strike against non-originalism.  It is unified in its belief that both "exclusive originalism" and originalisms that prioritize or privilege historical forms of interpretation are misguided.  Griffin may not like this because it may seem to prop up originalism as the status quo position.  But that is really an ideological agenda; conceptually, it strikes me as sensible to distinguish theories on this register.

But I haven't seen the full argument.

Posted by Ethan Leib on August 16, 2007 at 04:08 PM in Constitutional thoughts | Permalink

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