Legal Theory Lexicon 071: The New Originalism
Most law students will encounter “originalism” in their first course in constitutional law. Depending on the instructor, this encounter could be quite short or very extensive. Most law students will know that originalist constitutional theory is concerned with “original meaning,” but they may not know about the differences between versions of originalism that focus on “the original public meaning” versus “the original intentions of the framers,” much less “the original understandings of the ratifiers” or “the original methods of constitutional interpretation.” Most students are likely to encounter what is sometimes called “the Old Originalism”—the version of originalism that prevailed in the 1970s and early 1980s. The old originalism is associated with the idea that the constitution should be interpreted to conform to the original intentions of the framers—the group that drafted each provision. For the bulk of the constitutional text, drafting occurred in the Philadelphia Convention, but each of the amendments has its own drafting history. But in the 1980s and 1990s originalism began to change in significant ways, and in the late 1990s and early 2000s, scholars began to refer to “the New Originalism.”
This entry in the Legal Theory Lexicon focuses on what is called “the New Originalism.” Of course, labels like this are just names that carve up the theoretical landscape. For our purposes, “the New Originalism” refers to a cluster of originalist theories that embrace two ideas: (1) the claim that the original meaning of the constitution is its public meaning, and (2) the distinction between interpretation and construction. As always, the Lexicon is aimed at law students, especially first-years, with an interest in legal theory.