The Fallacy of the "New Originalism"

[rjlipkin at aol.com]

      But constitutional semantics is only one--albeit a crucial one--category of constitutional theory. Equally important is the political, philosophical character of the government created by the particular constitution under examination. If the political philosophy of American government includes giving certain historical characters--the Founders or Ratifiers--special relevance or weight, then a constitutional semantics that overlooks this feature of the political philosophy cannot count as a plausible constitutional semantics of that society. Of course, one can say no normatively attractive political philosophical theory of government would give particular historical characters special relevance or weight.  But that move leaves us without an answer to the question why call that constitutional semantics "originalism." Saying originalism has moved from intent to public meaning doesn't answer that question. OK, let's assume some such movement occurred, the question persists!
 , why call it "originalism" in contradistinction, say, to some revolutionary (in the Kuhnian sense) post-originalist interpretive theory? 
 
Bobby

Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware
 
 
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