Legal Commentary

One familiar argument for originalism, which I shall call ?the interpretation thesis,? holds that only originalism is consistent with our commitment to interpreting a written constitution as binding law. The idea here is that originalism is somehow inherent in the concept of interpretation. Like other conceptual arguments for originalism, the appeal of the interpretation thesis stems in significant part from its claim to stand outside the fuzzy and inconclusive realm of normative argument. Of course, the idea that judges (or other officials) should interpret the Constitution as binding law is a normative claim. But it is so widely accepted as to be essentially axiomatic. Beyond that, the interpretation thesis purports to be purely descriptive. Interpretation simply is the search for original meaning. Many originalists press this point with great vigor, but it is unclear what exactly they are purporting to describe.

The most obvious possibility is the underlying logic or predominant understanding of some set of actual social practices. But this construction of the thesis runs into an immediate difficulty: there is no set of social practices it could plausibly describe. It cannot be a descriptive claim about interpretive practice in general because that practice obviously involves far more than the search for original linguistic meanings. Indeed, as Timothy Endicott has observed, it is possible to speak perfectly idiomatically of interpreting ?dreams, novels, census data, seismograph records, constitutions and the entrails of a chicken,? most of which do not have original linguistic meanings at all. So the thesis is deeply implausible as a description of interpretive practice in general.

Yet proponents of the thesis also do not show any serious interest in describing the way interpretation is actually understood by officials charged with interpreting constitutions. It seems unlikely, therefore, that the thesis is an attempt to describe any underlying unity in the social practice of constitutional, or even legal, interpretation. Indeed, if that were its goal, the interpretation thesis would be wildly implausible. The actual practice of officials interpreting legally binding written constitutions, in the United States and around the world, is radically inconsistent with the exclusively originalist concept of interpretation that is at the core of the interpretation thesis.

Many originalists candidly acknowledge this fact, but fail to perceive the difficulty it poses for their purportedly descriptive ambitions. If not the actual social practice of interpretation in general or constitutional interpretation in particular, what could the interpretation thesis possibly be attempting to describe? The answer will have to await my next post.