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Two Ways to Understand Originalism

What is the purpose of Originalism? Professor Gary Lawson argues that there are two distinct answers to that question. Originalism can be simply a tool for interpreting a document, or it can be used for a further purpose of prescribing or prohibiting certain activities. Professor Lawson posits that the latter purpose is not properly in the realm of legal expertise. https://youtube.com/watch?v=m7mtwQ6yUuA


So I try very sharply to distinguish as I hope you will as well, two different kinds of questions. One, what does the Constitution mean? Are we interpreting a document figuring out what it says? Or are we actually prescribing conduct, telling people what to do and what not to do? That second question, I'll make this as clear as I can - is not a question of law. It's not a question of legal theory, it's not a question that lawyers have any distinct capacity to answer. You can stare at as many documents you like and they're not going to give you the answer to that question, that's a moral and political judgment. I've just articulated a sharp distinction between two kinds of originalism. Originalism as a device for understanding communicative content and originalism as a prescription for how, for example, how constitutional cases should be decided by courts. Do all originalists share my view that these are distinct? No, some of them do, some of them don't. You can get originalism as a communicative device from the Constitution in the sense that it presupposes that it's communicating something in the normal assumptions of communication. It's only when we translate that into the realm of action that we start to get controversy. Again, I want to be very clear, not saying - bad idea to decide Constitutional cases in accordance with the meaning of 1788. I actually think it's mostly a pretty good idea but the arguments for that, I recognize, are very, very different than the arguments that I would make. My point is only that those arguments are of a different form, indeed in a completely different domain, than the arguments about communicative meaning. Untold confusion comes from confusing those two kinds of arguments. Just hope that I can persuade some people, that it's a distinction that's worth keeping in mind.

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