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Is Originalism Internal or External to the Constitution?

Professor Lawrence Solum argues that originalism has to be both internal and external to the Constitution, for different reasons. The Constitution is a written document, designed to be binding, so all constitutional questions must examine the original internal meaning of the text. Originalism also needs to operate externally as a political theory to explain why the Constitution deserves to be binding in the first place. https://youtube.com/watch?v=iFE5TDGJqpo


Does originalism come from the Constitution itself? Or is originalism a theory that's outside of the Constitution, and that has to be justified on the basis of principles that are derived from political theory. Or from legal practices? Originalism, I think, is both an internal theory that comes from the Constitution itself, and an external perspective that's justified on the basis of considerations of political morality and legal practice. Originalism comes from the Constitution itself. There are many reasons why this is true. The Constitution is a written document. The whole point of having a written Constitution is to make the Constitution binding. To ensure that there are constitutional rules and standards that will regulate the conduct of Congress, the President, and the Courts. So the Constitution itself assumes, implies, and explicitly states that the constitutional text is to be binding, constraining, and not a mere guideline or starting point for the development of constitutional doctrines that are untethered to the text, but Originalism is also a theory that's external to the Constitution. Now, there's one basic reason why this has to be the case. Even if the Constitution itself is clearly an originalist document, there's a question of political morality, which is should we comply with our originalist Constitution, and the answer to that question can't be yes, we should because the Constitution wants us to. That would be begging the question, assuming the conclusion to the argument. So the Constitution also needs to be justified by arguments that are not found in the document itself. Some of those arguments are arguments of political morality. When the Supreme Court talks about its relationship to the constitutional text, it uses the language of fidelity and constraint. So it can be argued that the deep structure of American constitutional practice is committed to originalism. Now a caveat's very important here, the deep structure may be committed to Originalism, but it seems obvious that the surface structure of constitutional doctrine has departed from originalism in a variety of important respects. In areas like federalism, the separation of powers and unenumerated rights there are very serious originalist challenges to some decisions of the Supreme Court. So the idea that originalism is implicit in our constitutional practice operates at the level of principle, at the level of deep structure and not at the level of every constitutional decision. Not at the level of surface structure.

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