Imagine
a regime whose fundamental law is only to be found in ancient archives, whose
mysterious contents take years to unearth, layer by layer. Each new discovery brings about a revolution,
as large bodies of established law are unexpectedly discarded and others,
previously rejected, spring back into life as the scholars revise earlier
conclusions. The operations of
government are in constant confusion and disarray. And this state of affairs is likely to
persist indefinitely.
That doesn’t sound attractive, does
it? But that is where some prominent
strands of modern originalist constitutional theory would lead us. An essay that I have just posted on SSRN explores the methodological steps,
each of which in themselves had a certain plausibility, that brought us here.
I usually put a note on Balkinization as soon as I have a new paper out, but this time I was slow, and the tireless Larry Solum has already posted a response, disputing my claim that "The now dominant assumption – one might call it the New New Originalism -
is that the Constitution’s meaning can be determined by ascertaining
the semantic meaning that each term had at the time of the founding." Larry, whose understanding of contemporary originalism one doubts at one's peril, claims that "every public meaning originalist of whom I am aware rejects this approach." I can only respond that I cite some prominent work that follows precisely that approach, with the baleful implications that I describe.