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In "Simple-Minded Originalism? Simply Wrong!" Lawrence Solum identifies two propositions that constitute the core of Larry Alexander's position on originalism. The first proposition is that meaning is essentially intentional in nature and therefore the meaning of a text is necessarily the author's intended meaning. The second proposition is that the legitimacy of a constitutional text derives from the legitimacy of its author, and therefore any meaning of the constitutional text other than the meaning intended by framers is illegitimate. Solum argues that the first proposition is mistaken: Although meaning must involve intention at some stage, texts have plain meaning that only indirectly depends on individual intentions. Solum argues that the second proposition leads to the consequence that almost all legal texts are illegitimate, because the drafters of such texts are not individually authorized to propose or ratify them. Solum then considers the possibility that this difficulty can be overcome through second-order communicative intentions and shows that this solution undermines both of Alexander's propositions.
Although the written provisions of the United States Constitution are sometimes contrasted to an “invisible” or “unwritten” constitution, those labels are misleading. This Chapter explores the relationship between originalism and extratextual sources of constitutional law. This investigation begins with a brief explication of the originalist family of constitutional theories and proceeds to a typology of extratextual sources of constitutional law. Originalists should embrace the use of sources outside the text when they provide context that disambiguates or enriches the literal meaning of the constitutional text. But originalism should reject the use of extratextual sources (such as the moral beliefs or policy preferences of judges) as the basis for constitutional doctrines that contradict the constitutional text. The Ninth Amendment of the United States Constitution provides an important test case for originalism, because the text itself presupposes the existence of unenumerated “rights retained by the People.”
Debates over “originalism” have been a central focus of contemporary constitutional theory for three decades. One of the features of this debate has been disagreement about what “originalism” is. More worrisome is the possibility that the arguments between contemporary originalists and their opponents, the “living constitutionalists,” are confused – with each side of the debate making erroneous assumptions about the content of their opponent's theories.
The aim of this chapter is to clarify these debates by providing a history of contemporary originalism and then developing an account of the core or focal content of originalist theory. The history reveals that contemporary originalist theory has evolved – the mainstream of originalist theory began with an emphasis on the original intentions of the framers but has gradually moved to the view that the “original meaning” of the constitution is the “original public meaning” of the text. Even today, originalists disagree among themselves about a variety of important questions, including the normative justification for a constitutional practice that adheres to original meaning. Despite evolution and continued disagreement, however, contemporary originalist theory has a core of agreement on two propositions. First, almost all originalists agree that the linguistic meaning of each constitutional provision was fixed at the time that provision was adopted. Second, originalists agree that our constitutional practice both is (albeit imperfectly) and should be committed to the principle that the original meaning of the Constitution constrains judicial practice. The question whether living constitutionalists actually disagree with these core principles of originalist theory is a complex one – to which we shall return at the end of this chapter.
American philosophy of law has begun to make what has been called the aretaic turn. What is the aretaic turn in normative legal theory? This question has both a positive and a negative answer. Begin with the negative – the aretaic turn is a turn away from the domination of normative legal theory by consequentialist and deontological paradigms, including normative law and economics and Dworkin's theory of law as integrity. In other words, the aretaic turn rejects the dominant traditions in contemporary theorizing about the ends of law.
A more illuminating description of the aretaic turn can begin with a definition. The word to express virtue or excellence in classical Greek was arête, from which we derive the English word aretaic, of, or pertaining to, excellence or virtue. Thus, the aretaic turn is a turn toward a virtue-centered theory of law, to which we can give the name virtue jurisprudence. Virtue jurisprudence offers a rich and fruitful account of the nature, means, and ends of law that simultaneously dissolves old problems and poses a new set of challenges for legal theorists. A good place to start our investigation of the aretaic turn in the philosophy of law is with a statement of problems it attempts to address.
TWO ANTINOMIES: RIGHTS VERSUS CONSEQUENCES AND FORMALISM VERSUS REALISM
Contemporary legal theory is characterized by two antinomies: the antinomy of rights and consequences and the antinomy of realism and formalism.
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