Academic

Webber on an Original Constitution

By Lawrence Solum

Grégoire Webber (McGill University, Centre for Human Rights and Legal Pluralism) has posted What is an Original Constitution? on SSRN.  Here is the abstract:

This essay seeks to explore originalism as something other than a theory of interpretation. This might strike one as odd. After all, if originalism is a theory of interpretation, how else might one seek to understand it? Yet, conceiving of originalism as something other than a theory of interpretation may reveal insights that otherwise would remain beyond our immediate grasp. Recognizing this potential, I wish to reflect on how originalism can be understood, not as a theory of interpretation, but rather as a constitution. In short, the query I wish to explore is: What is an original constitution? What model of a constitution does originalism contemplate? Now, attempting to design an original constitution may suffer from the same contests facing any account of originalism. Different originalists make different commitments and any attempt to select among them will be vulnerable to criticism. Despite the differences between originalists, I believe that three commands and commitments can fairly be attributed to originalism without raising too much contest. I will argue that the original constitution is written at the founding and changed only by the amendment procedure it sets out (Part I), is law insofar as it provides rule-like prescriptions (Part II), and occupies a delimited domain, leaving the rest to democracy (Part III). The model of an original constitution that I elaborate seeks to provide a model of a fictional constitution that satisfies, perhaps to a fault, the key commitments and commands of originalism. It seeks to bring to light the commands and commitments originalism would have of us, and of constitutions.

Full post as published by Legal Theory Blog on January 12, 2009 (boomark / email).