Academic

Lash on Originalism & the 14th Amendment

By Lawrence Solum

Check out Kurt Lash's post, Originalism and the Fourteenth Amendment on Prawfs. Here is a taste:

Two distinctions are key to understanding what is sometimes known as the New Originalism. First, the approach assumes that, at some point, historical information ?runs out??some conclusions about public meaning may be possible, but a degree of original understanding of the text may remain hidden or vague. Application of the text to a modern dispute thus may require judicial *construction*?the creation of legal rules that do not contradict the original understanding, but are nevertheless not identified aspects of the original meaning of the text. This distinction between interpretation (the discovery of original meaning) and construction (filling in the gaps left by an incomplete historical record) suggests another key aspect to contemporary originalism: The distinction between historical discovery and normative theory. Step one of originalism is the discovery of the original meaning (to the extent possible). Step two is the normative decision regarding how (or even whether) to apply that original understanding to a contemporary dispute. One often finds objections to originalism based not on the idea that texts have meaning which is fixed at the time of their enactment, but instead based on various normative considerations of justice, pragmatism, or other normative theories of constitutional enforcement.

Full post as published by Legal Theory Blog on September 03, 2009 (boomark / email).