Solum & Bennett Debate Originalism:
The Northwestern Law Review has a new online debate format called Colloquy. Former-NU Law dean Bob Bennett has a very interesting "Dialogue on Originalism" with University of Illinois law professor Larry Solum of Legal Theory Blog here. This exchange is a highly accessible way to grasp the difference between original framers intent originalism, and original public meaning originalism. There is no way to summarize the substance of the exchange here, but here is a tease:
(civil comments only please)
Unlike Professor Bennett, I believe that theories of constitutional meaning deeply implicate the philosophy of language—or to put it more prosaically, interpretation and meaning, like love and marriage, go together like a horse and carriage. How can we answer the question, "What does the constitution mean?," without a theory of meaning? Such a theory provides the criteria by which the rightness or wrongness of answers to questions of constitutional meaning can be judged. And even when these questions are answered without an explicit theory, it will always be the case that some implicit theory will be doing work behind the scenes. And once the implicit theory is made explicit, it may turn out to be wrong, confused, or even self-contradictory. . . .Read the whole thing.
There is a larger point to be made about this exchange. The formulators of early versions of originalism made a mistake that is very much like the mistake that Professor Bennett has made in this exchange. They formulated a theory of constitutional meaning that could not work, because it was inconsistent with fairly elementary truths about meaning in general: the early originalists made serious philosophical errors. Original-meaning originalism—which focuses on the public meaning of the text (which I have called "clause meaning")—avoids those mistakes. Of course, original-meaning originalism does not have the same "normative punch" that early originalists mistakenly attributed to intentionalism. Jack Balkin has made that point clearly and forcefully in his recent work. In my experience, many constitutional theorists haven't yet grasped that there has been a sort of Copernican revolution in constitutional theory. Many constitutional scholars assume that "originalism" means "intentionalism," and that talk about "original public meaning" is just a minor and insignificant tweak in originalist theory. Moreover, there is an implicit assumption that the "new originalism" is intended to serve the same political agenda as the "old originalism." These assumptions are simplistic and, for the most part, false. Original-meaning originalism is not a close cousin of intentionalism—it is a completely different theory. And the political agendas of the new originalists are as diverse as the political views of Randy Barnett and Jack Balkin—hardly identical to those of Robert Bork or Raoul Berger.
(civil comments only please)