The Purpose(s) of Originalism

RJLipkin at RJLipkin at
Sun Sep 3 10:35:03 PDT 2006

Isn't it the case that  answering such questions: (1) does originalism 
constrain judges?, (2) does  originalism require the moral values of the Founders?, 
(3) which form of  "originalism"--originalism as intentionalism or originalism 
as the dated public  meaning, and so forth--depend completely on what 
purpose(s) originalism is  supposed to serve. For example, some may say, for example  
Stanley Fish, if I understand him correctly, that intentionalism--or  
authorial meaning--is the only interpretive methodology involved in  ascertaining the 
meaning of a text and all other disputes occur within the  context of 
authorial meaning.  Nevertheless authorial meaning might take on  a wholly different 
form when shifting from ordinary literary interpretations to  constitutional 
interpretations because the latter may have (should have?)  specific political 
philosophical purposes. While originalism purports to  be, and is, a theory of 
meaning, the fact that it is a theory of meaning  of constitutional text, in 
contradistinction say, to a theory of meaning of  War and Peace matters, I 
would think. Theories of meaning may  be uniform across disciplinary 
contexts--the same theory of meaning may  apply to every domain of human inquiry--or they 
might differ according to the  disciplinary context. Either way determining 
which purposes originalism is  supposed to serve seems to be necessary before we 
can reach any consensus at all  concerning the questions above. 

Robert Justin Lipkin
Professor of Law
Widener  University School of Law
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