John O. McGinnis (Northwestern University – Pritzker School of Law) and Michael B. Rappaport (University of San Diego School of Law) have posted The Constitution’s Own Interpretive Method: Advancing the Original Methods Approach (Notre Dame Law Review, forthcoming) on SSRN. Here is the abstract:
This Article develops original methods originalism. It defends the view that constitutional meaning is determined by the word meanings and legal interpretive rules applicable when a constitutional provision was adopted. The Article advances four interrelated theses. First, the original interpretive rules help constitute constitutional meaning and are incorporated into constitutional law. Second, the Constitution’s legal language and interpretive conventions make its meaning more determinate than ordinary language alone would suggest. Third, these resources resolve many questions that others treat as part of constitutional construction, substantially narrowing the construction zone. Fourth, properly understood, original intent, original public meaning, and original law converge on the original methods approach.
The Article also addresses several central disputes within originalism. The Article argues that the governing interpretive rules derive from the constitutional text and historical legal authority rather than contemporary normative preferences. It also identifies historical support for a “51–49 rule.” That rule requires interpreters to choose the interpretation with better support even when the evidence is closely divided. The Article explains how constitutionalized common law rights can apply to new circumstances through principles and methods of reasoning discovered by investigating historical sources, without reference to modern values. The Article concludes by comparing our account with the theories of Solum, Baude and Sachs, Barnett and Bernick, and Balkin. It also offers a version of original law originalism that derives the law of interpretation from the Constitution rather than from the general law and thus aligns more closely with the original methods approach.
Highly Recommended!
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Lawrence Solum