The Political Theory of Originalism in Constitutional Law: on the Primacy of Originalism and the Historical Specificity of its Pure Procedural Norms

초록

Originalism is the legal theory that high courts should apply the original meaning of constitutions in adjudicating constitutional law. Most originalists believe constitutional judgments must follow the original public meaning of a constitutional text when ratified. This depends on two normative claims. These involve first the authority of originalism relative to other forms of jurisprudence and second the theories of legitimacy that show why originalism holds such authority. This article argues that the dominant version of originalism, which asserts its primacy over other forms of jurisprudence, must rely on a pure procedural theory of legitimacy. However, originalists to date have offered only vague, generic, and ahistorical norms of procedural legitimacy. What is needed are procedural norms devised in light of the actual history of constitutional ratifications. In turn, the legitimacy of originalism depends on whether the fulfilment of such specific procedural norms can be shown with the existing historical record of a ratification. In the United States, such analysis shows that the primacy claimed for public meaning originalism fails to live up to its appropriate procedural premises. The implications of this argument, conversely, may actually provide support for proceduralist legitimization of originalism in other jurisdictions.

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