Bench Memos

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Re: Stuart Taylor and Originalism


Thanks to Ed Whelan for his comments below on Stuart Taylor’s column. Like Ed, I have long been impressed by Taylor’s sharpness and fairness, even when I disagree with him. That makes it kind of disappointing to read that Taylor was impressed by Justice Breyer’s argument against originalism. Breyer wants to know why, if the framers disagreed on so many things, they should be understood as having “agreed about what school of interpretive thought should prove dominant in interpreting” the Constitution ever after.

Plenty of scholars who have defended originalism have patiently explained that it is not a form of “mechanical jurisprudence” in which answers to tough interpretive questions are cranked out by an inexorable and automatic logic. But what is shockingly bad about Breyer’s argument is not merely its question-begging character, but the ignorance of legal history that it reveals. There is a very simple reason why all the framers were in agreement about just one “school of interpretive thought” being “dominant,” and that is that the whole notion of there being multiple schools of thought would have been completely alien to them. What we today call originalism carried no such label in the framers’ day, because it simply was legal thought as they knew it. There was no competing “school” vying for their attention. To engage in legal interpretation—of wills, contracts, statutes, or constitutions—was to engage in the practice we now call “originalism.” We call it that because today there are competing approaches. For the framers there was interpretation, it was done in a certain way, and that was that. Whatever their disagreements, they were in agreement about what they were all doing as an intellectual enterprise.


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