Solum On Pedantic Originalism

In the spirit of the day, too inwards homage to the master, I idea I would portion a novel newspaper that may last of interest.  Deepening his foundational move too refining approximately of its centre claims, Lawrence B. Solum (Georgetown University Law Center) has posted Pedantic Originalism (unpublished monograph) on SSRN.  Here is the abstract:

  

Pedantic originalism is a theory of constitutional pregnant that aims, through meticulous philosophical analysis, to (1) clarify the business office of original pregnant inwards constitutional interpretation, (2) reason originalist enquiry inwards the pragmatics of natural language, too (3) reorient constitutional struggle away from contentious normative questions too toward to a greater extent than congenial topics inwards legal semantics.

After a brief introduction, Part I (pp. 56-93) describes the fixation thesis, which asserts that the communicative content of a constitutional provision is fixed at the fourth dimension the provision is framed too ratified.  Where the Constitution uses “he,” it should accordingly last interpreted every bit “he or she” except when the framers too ratifiers actually did cause got males inwards mind; inwards such instances, the regulation of tough luck controls.

Part II (pp. 94-169) describes the contribution thesis, which asserts that the linguistic pregnant of the constitutional text makes a contribution to constitutional doctrine.  It volition frequently last hard to tell precisely what form of contribution, only for certain an influence greater than naught tin move last assumed. 

Part III (pp. 170-257) describes the fidelity thesis, which asserts that those who deny the contribution thesis bring out themselves to be unfaithful citizens.  Whether or non this determination extends to those who deny fifty-fifty a generalized version of the fixation thesis depends on whether such persons are deemed to cause got the capacity for rational thought.

Part IV (pp. 258-305) tells the storey of originalism’s theoretical development.  Consistent amongst the demands of interpretive charity too narrative economy, it stipulates that originalism emerged autochthonously from the search for truth inside the legal academy.

Part V (pp. 306-393) takes upward the number of liability for “accidents” that occur inwards the construction zone, where the linguistic pregnant of the constitutional text underdetermines results.  Responding to Jack Balkin’s plow over abortion too original understandings, it introduces the concept of an originalism bullshit detector to constabulary this zone, likewise every bit the concept of excommunication from San Diego as the telephone commutation sanctioning mechanism.

Finally, Part VI (pp. 394-486) responds to objections that originalism is anathema to democratic self-rule too an elegy to patriarchy too white supremacy.  The Gricean theory of implicature, it is explained, renders such objections beside the point.