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What Kind of Theory Is Originalism?

Professor Michael McConnell explains that Originalism can be used as either a linguistic theory or a political theory. The linguistic theory relies not only on written sources, like dictionaries, but also on careful research about the context in which the words were used. Every word in the Constitution was deliberately chosen and it is important to understand why the choices were made. Originalism is also a political theory of interpretation. The Constitution is a political document based on the premise of popular sovereignty. It is important to interpret the Constitution in the political context of the time it was written. https://youtube.com/watch?v=3gtGHBoIupk


Originalism can be understood as either a linguistic theory or a political theory. The linguistic theory is that words are intentionally communicative, and so the communicative intent of the speaker and the audience determine the meaning of the word. And so, you know, if we were to have a text that sort of appears mysteriously from some prior civilization, we need to know something about that civilization in order to understand the text. You know, there is not a word in the Constitution, not a clause in the Constitution that's there by accident. They were either adopting aspects of the British Constitution that they liked, or rejecting aspects of the British Constitution that they disliked, or responding to things that had happened in the colonial or state Legislatures. They were responding to major events that affected civil liberties, you know, particular trials, like the trial of Sir Walter Raleigh which was so important for understanding of criminal procedure. Or to the seizure by armies of horses and blankets and other property during the American Revolution, which was one of the main reasons for the Takings clause of the Fifth Amendment. There can be too much of an emphasis upon, say, dictionaries, and less emphasis than there should be upon the context in which particular provisions arise. Now the political theory of the Constitution is one of democratic theory, or popular sovereignty, that if we believe that the reason why the Constitution is authoritative is that the people of the United States had the authority to institute it, then it should be what the people believed the Constitution was doing, and not some other meaning that we might want to project upon the text hundreds of years later.

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