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Publication Date

2017

Abstract

Even if one concedes that the meaning of the
Constitution today is its original meaning, at what level of
generality should one seek that meaning? In considering
whether bans on same-sex marriageviolate the Fourteenth
Amendment, for example, should we seek to determine how
the framers of the Amendment would have answered that
question, or should we instead seek to discern the broad
principle-perhaps "equality" or "no caste-like
discrimination"-that the Amendment objectively
incorporated, even if application of that principle today
might produce results that the framers would not have
anticipated? The level of generality at which we ask the
question almost foreordains the answer. But how should a
faithful originalist identify the proper level of generality?
The old originalism focused on the original intent of the
framers, and it sought to ascertain that intent at the most
narrow level of generality. Under this approach, if the
framers believed that a particular practice was
constitutional, then it is constitutional today. The old
originalism was principally concerned with judicial
constraint and judicial restraint; confining judges to a
narrow historical inquiry promoted the former, and
narrowing the scope of individual rights promoted the
latter. But the old originalism suffered from serious
defects, including the fact that it could not justify Brown
v. Board of Education and other cases that are central to
our constitutionalidentity today.
The new originalism, which generally seeks the
objective original meaning of the text instead of the
original intent and treats as non-binding the framers'
expectations about how the text would apply, has
addressed many of the theoretical defects of the old
originalism. New originalistsgenerally acknowledge that
because many of the Constitution's most contested
provisions are framed in abstract terms, we should seek
their objective original meaning at a correspondingly high
level of generality. But the higher the level of generality at
which we seek original meaning, the more room there is
for judicial creativity in applying the Constitution's broad
principles to issues that arise today.
Indeed, by embracing interpretationof the text at a high
level of generality, new originalists have opened the door

to interpretationsthat would have come as a big surprise
to the old originalists:originalistarguments not only that
Brown was correct (notwithstanding the well-established
view at the time of the framing of the Fourteenth
Amendment that it would not disturb the common practice
of racially segregated schools), but also that the
Amendment prohibits gender discrimination, interference
with a broad and potentially undefined group of
unenumerated rights, and even bans on same-sex
marriage.
These arguments might come as a welcome surprise to
those who are skeptical of originalism, but they also come
at a cost. First, there is little to distinguish these
ostensibly originalist arguments from non-originalist
approaches to interpretation, most of which begin by
reading the text at a high level of generality and then seek
to rely on practical judgment to apply the principles
behind the text to modern circumstances. Second, new
originalism's flexible approach to the level of generality
means that the approach cannot fulfill its promise of
judicial constraint.
Indeed, in practice originalistshave varied the level of
generality at which they seek original meaning, often from
case to case and issue to issue, in ways that cannot be
explained simply by reference to the level of abstraction at
which the constitutional text is expressed. This Article
documents that phenomenon, and concludes that sooner or
later originalists will have to choose between their claims
of constraint and neutrality, on the one hand, and
legitimacy, on the other.

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