Getting Clear on the Originalism Debate: Is Originalism a Theory of Constitutional Interpretation or a Normative Rule of Law?ExpressO (2012)
AbstractThe accompanying Article argues that proponents of Constitutional originalism have conflated conceptually distinct terms "meaning," "understanding" and intent, and that this blurring has permitted originalist theory to ignore a tension in its dual justifications rooted in democratic theory, on the one hand, and rooted in a standard semantic theory of intentionalism, on the other by showing that the demands of originalism’s underlying legal theoretical justification conflict with the those of its underlying semantic theoretical justifications. The conflict arises because the normatively significant agent in democratic theory is the Constitutional ratifiers whereas in the standard intentionalist semantic theory it is the Constitutional authors. The Article's conclusion, thus, provides a framework for clarifying the debate surrounding the theoretical merits of an originalist theory in Constitutional interpretation and, therefore, for clarifying routes to arguing for or against it.
- U.S. Constitution,
- Constitutional interpretation,
Publication DateJuly 12, 2012
Citation InformationJudy Hensley. "Getting Clear on the Originalism Debate: Is Originalism a Theory of Constitutional Interpretation or a Normative Rule of Law?" ExpressO (2012)
Available at: http://works.bepress.com/judy_hensley/1/