This article explores two assumptions about constitutional law and the form of practical reasoning inherent in constitutional argument and decision that have shaped the debate over originalism. The first assumption—adopted by originalists—is that constitutional reasoning is a formalistic process. Originalism’s critics tacitly describe a very different and less formalistic model. The second assumption—shared by originalists and most of its critics alike—is that the central task of constitutional decision is to interpret the Constitution. Both of these assumptions are wrong. Constitutional argument is not, and cannot be, reduced to the formal model of reasoning tacitly employed in originalism. The critics of originalism correctly point out that constitutional argument is more complex than originalism’s formal account allows. But those critics share with originalists the mistaken premise that our constitutional practice begins with interpretation. That agreement masks the substantial differences in their respective accounts of interpretation, however.
This Article demonstrates how these two assumptions have contributed to the fruitlessness of the debate. For example, if we reject the premise of the logical priority of interpretation the celebrated problem of generality dissolves. By articulating the jurisprudential foundations of the debate, this Article allows us to recognize the sterility of the debate over originalism and the likelihood that it cannot be successfully resolved by the protagonists on either side of the debate. While discarding the formalism of contemporary originalism does not compromise core originalist claims, the importance of that formalism to some of originalism’s stronger claims of privilege makes such an approach less attractive to originalism. Originalism’s critics, while right about constitutional reasoning, fail to discredit other important originalist claims. Thus, the protagonists in the debate may be likely to continue even after better understanding interpretation and the practice of constitutional argument. That would be a mistake. A better account of the place of interpretation and the nature of practical reasoning in constitutional reasoning also opens up the alternative of moving beyond the fruitless, stalemated debate about originalism.
André Leduc, Competing Accounts of Interpretation and Practical Reasoning in the Debate over Originalism, 16 U.N.H. L. Rev. 51 (2017), available at https://scholars.unh.edu/unh_lr/vol16/iss1/4/