Originalism and Determining Meaning

Originalism and Determining Meaning

Originalism is a theory of Constitutional interpretation that places primacy on the meaning of the text of the Constitution - yet the question of determining how much can be understood from the Constitution is debated among Originalists.

Some Originalists think that the text only provides a narrow or ambiguous meaning, leaving room for significant construction of meaning to fill in the gaps.  Other Originalists argue that the text itself supplies more explicit meaning, leaving less room or need for construction.

This unit in the No. 86 project explores different views in this debate about the “construction zone.”  

“Liberty is to faction what air is to fire.”

― Federalist No. 10

In addition, Originalists, over time, have used different methods and relied on different sources to conduct original public meaning analysis, including looking at Founding-era documents, dictionaries, and newer scholarly methods such as corpus linguistics.  We explore similarities and differences among these schools of thought.

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7 of 11: What about rights didn't the Founders recognize? [No. 86]

What does an Originalist do when forced to evaluate concepts that the Founders couldn’t have anticipated? Professor Michael McConnell discusses unenumerated rights that are not specified in the Constitution. In particular, he explains how the Pri ... What does an Originalist do when forced to evaluate concepts that the Founders couldn’t have anticipated?

Professor Michael McConnell discusses unenumerated rights that are not specified in the Constitution. In particular, he explains how the Privileges and Immunities Clause was designed to bring about national consensus on issues with a longstanding history of interpretation. Rather than giving courts the power to find and enforce novel rights, the Clause is supposed to bring varying state interpretations into alignment with well-established practices.

Michael William McConnell is a constitutional law scholar who served as a United States Circuit Judge of the United States Court of Appeals for the Tenth Circuit from 2002 until 2009. Since 2009, McConnell has served as Director of the Stanford Constitutional Law Center at Stanford Law School.

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

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