Book contents
- Frontmatter
- Contents
- Preface
- Introduction
- 1 The Politics of Originalism
- 2 The Concept of a Living Constitution
- 3 Interpretivism and Originalism
- 4 The Paradox of Originalism
- 5 The Problem of Objectivity
- 6 The Epistemology of Constitutional Discourse (I)
- 7 The Epistemology of Constitutional Discourse (II)
- 8 The Ontology of Constitutional Discourse (I)
- 9 The Ontology of Constitutional Discourse (II)
- 10 Conclusion: The Political Character of Constitutional Discourse
- Index
4 - The Paradox of Originalism
Published online by Cambridge University Press: 14 May 2010
- Frontmatter
- Contents
- Preface
- Introduction
- 1 The Politics of Originalism
- 2 The Concept of a Living Constitution
- 3 Interpretivism and Originalism
- 4 The Paradox of Originalism
- 5 The Problem of Objectivity
- 6 The Epistemology of Constitutional Discourse (I)
- 7 The Epistemology of Constitutional Discourse (II)
- 8 The Ontology of Constitutional Discourse (I)
- 9 The Ontology of Constitutional Discourse (II)
- 10 Conclusion: The Political Character of Constitutional Discourse
- Index
Summary
A survey of the voluminous literature on the originalism debate in contemporary American constitutional theory suggests that the arguments for the originalist paradigm of constitutional interpretation tend to fall into two general categories: literary and political. The literary argument advanced by originalists is, simply, that reading a text obviously involves nothing more and nothing less than attempting to discover what the author was trying to communicate. Originalists themselves differ as to evidence of the original understanding of the Constitution. For some, original understanding is grounded in the intentions of the Framers – the authors – of the Constitution, the position I call hard originalism; for others, original understanding is grounded in the understanding of the ratifiers – the first readers – of the Constitution, the position I call soft originalism. Raoul Berger writes:
A constitution is a written document, and as John Selden, the seventeenth century sage, observed, “a man's wryting has but one true sense, which is that which the Author meant when he writ it.” This is the essence of communication. It is for the writer to explain what his words mean; the reader may dispute the proposition, but he may not insist in the face of the writer's own explanation that the writer meant something different.
On this view, which is that of hard originalism, the author of a text controls the meaning, and the reader's task can be nothing other than to enter into the mind of the author.
- Type
- Chapter
- Information
- The American Constitution and the Debate over Originalism , pp. 122 - 153Publisher: Cambridge University PressPrint publication year: 2005