Document Type

Article

Publication Date

1996

Abstract

Perhaps the most universal objection to originalism is that it is impossible; that is, the materials relied upon by originalists simply do not yield determinant answers to any worthwhile questions. This indeterminacy objection lacks significant force for at least three reasons. First, the claim that the interpretive materials are always indeterminate vastly overstates the extent and importance of the uncertainties involved; consequently, originalism's critics understate the importance of the originalist canon as a tool for reducing the degree of indeterminacy in constitutional interpretation. Once it becomes clear that originalist methodology can provide some definitive answers, even if significant indeterminacy remains, it becomes clear that the indeterminacy objection in fact trades on the assumption that originalism claims to be able to produce a highly significant degree of determinacy. Although some have tried to justify originalism primarily based on a perceived need for fixed and certain rules and the elimination of the judicial discretion, originalism does not stand on these sorts of claims; indeed, one can more plausibly defend originalism without resort to them.

Second, the alternative methods of constitutional decisionmaking are in general at least as indeterminate, if not more so, than is originalism. Although nonoriginalist methods well might be brought to bear in cases in which originalist methods fall short, originalism nevertheless provides a useful tool, and hence a net benefit. Paraphrasing Jefferson on the value of a Bill of Rights, if determinacy is a value at all, why not have at least half a loaf?

Finally, virtually no one contends that the original materials -- text and relevant contextual materials -- are completely irrelevant to the task of giving effect to the Constitution. The rejection of the view that originalist materials might yield some binding answers to important constitutional questions does not help to avoid the evil of the frequent indeterminacy of originalist materials: the tendency of interpreters to claim certainty when it does not exist. Whether or not we adopt originalism as a primary canon for constitutional interpretation, we should be careful, in the use of historical materials, to avoid overblown claims as to what we can know. In the author’s experience, nonoriginalists who reject the binding effect of originalist interpretation have abused the historical materials more consistently in offering a variety of claims (especially those concerning the Founders' commitment to the originalist canon) than have the originalists whom nonoriginalists criticize for naiveté in reliance on historical materials. This article elaborates on these three points in a bit more detail.

Publication Citation

19 Harv. J.L. & Pub. Pol'y 429 (1996).

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