What Kind of Theory is Originalism? [No. 86]
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What Kind of Theory is Originalism? [No. 86]


Originalism can be understood as either a
linguistic theory or a political theory. The linguistic theory is that words are intentionally
communicative, and so the communicative intent of the speaker and the audience determine
the meaning of the word. And so, you know, if we were to have a text
that sort of appears mysteriously from some prior civilization, we need to know something
about that civilization in order to understand the text. You know, there is not a word in the Constitution,
not a clause in the Constitution that’s there by accident. They were either adopting aspects of the British
Constitution that they liked, or rejecting aspects of the British Constitution that they
disliked, or responding to things that had happened in the colonial or state Legislatures. They were responding to major events that
affected civil liberties, you know, particular trials, like the trial of Sir Walter Raleigh
which was so important for understanding of criminal procedure. Or to the seizure by armies of horses and
blankets and other property during the American Revolution, which was one of the main reasons
for the Takings clause of the Fifth Amendment. There can be too much of an emphasis upon,
say, dictionaries, and less emphasis than there should be upon the context in which
particular provisions arise. Now the political theory of the Constitution
is one of democratic theory, or popular sovereignty, that if we believe that the reason why the
Constitution is authoritative is that the people of the United States had the authority
to institute it, then it should be what the people believed the Constitution was doing,
and not some other meaning that we might want to project upon the text hundreds of years
later.

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