Balkinization  

Thursday, May 02, 2013

Must We Be Faithful to Original Meaning?

JB

I've posted my latest article, "Must We Be Faithful to Original Meaning?" on SSRN. The essay came out of a May 2012 conference on Living Originalism held at Hebrew University in Jerusalem. It expands on some of the arguments I made in the book for my version of original meaning originalism. The essay closes by discussing a few analogies between different versions of originalism in American legal theory and different theories of Biblical and Talmudic interpretation in Jewish law. Here is the abstract:

* * * * *


This essay responds to essays written for a symposium on Living Originalism that will appear in the Jerusalem Review of Legal Studies. It expands and develops the book's argument for fidelity to original meaning.

First, the essay explains why interpretive fidelity requires, at a minimum, fidelity to the basic framework -- the Constitution's original semantic meaning and the Constitution’s choice of rules, standards, and principles. This is a hypothetical imperative, not a categorical one. If Americans want to follow the plan of their Constitution, this is the least that fidelity requires. But they need not continue to do so. As they did with the Articles of Confederation, Americans could reject their present Constitution through a new act of constituent power. The argument assumes, however, that Americans are not deluded or disingenuous in asserting that they continue to accept their Constitution as amended.

Second, the article argues for a "thin" theory of original meaning that both leaves room for and necessitates constitutional construction by subsequent generations. To be sure, framework originalism makes use of background context to infer some aspects of original meaning that are not explicitly stated by the text, but it limits these inferences to those necessary to make sense of the basic framework and its economy of delegation and constraint.

A "thin" account of original meaning makes the best sense of Americans' actual practices of constitutional development. It is also the most consistent with the democratic legitimacy of an ancient constitution over time. A theory of original meaning that is too thick will increasingly undermine democratic legitimacy as time goes on. It will fail to make use of the institutional capacities of later generations to adapt government to technological, social and economic change. The problems of the increasing democratic deficit of originalism over time and of the limited institutional capacities of adopters are best solved by a thin theory of original meaning, which leaves ample room for constitutional construction.

The essay concludes by comparing different theories of originalism -- including Living Originalism -- with different theories of Jewish law that explain or justify disagreement or change over time. An important difference must be noted at the outset: According to Jewish tradition, the Torah is the word of God, and therefore cannot be mistaken, while a political constitution is the work of fallible human beings.

Nevertheless, the different rabbinic solutions to (or explanations of) disagreement and change in the Talmud correspond to different positions in American constitutional scholarship. The argument of Living Originalism, it turns out, is closest to the position of Rabbi Moshe Shmuel Glasner (the Dor Revi'i), who argued that while the Written Law does not change, the Oral Law must be dynamic in order to "not to tie the hands of the sages of every generation from interpreting Scripture according to their understanding."


Home