Washington University Jurisprudence Review
Because the participants in the debate over constitutional originalism generally understand the controversy to be over a matter of the objective truth of competing interpretations of the Constitution, they do not believe that their mission is to persuade the other side. When what is at stake is a matter of objective truth, subjective opinions are of less moment.
This Article begins the long overdue transcendence of our increasingly fruitless and acrimonious debate over originalism by articulating the tacit philosophical premises that make the debate possible. It demonstrates that originalism, despite its pretensions to common sense and its disavowal of abstruse philosophical analysis, is tacitly committed to three key ontological and linguistic premises. First, language represents the world. Second, propositions or statements are true if they accurately (truly) represent that world. Thus, propositions of constitutional law represent the constitutional world. As a consequence, propositions or statements of constitutional law are true if they accurately (truly) represent that constitutional world. Third, there is an ontologically independent Constitution that our constitutional interpretation describes. For the originalist, that objective Constitution is the semantic understanding of the constitutional provisions when they were originally adopted or amended. Moreover, surprisingly, originalism’s critics are also committed to these same premises about the nature of language, the nature of truth and the existence of an objective Constitution. Originalism’s critics assert that the objective Constitution has sources beyond the original understanding of its provisions.
These shared premises about the nature of language and the nature of the Constitution permit the debate over originalism to proceed as a debate about the objective truth of constitutional interpretations and the accuracy of each side’s description of the objective facts about the Constitution. Because both sides of the debate believe there to be an objective answer to the questions they address, the debate can focus upon defending the account of the relevant interpretation rather than on persuading the other side. Understanding that fundamental dynamic to the debate helps explain why it has been so unproductive. Moreover, understanding that the debate over originalism is only possible if these premises are true highlights the underlying question whether such premises are indeed correct.
The Ontological Foundations of the Debate over Originalism,
7 Wash. U. Jur. Rev. 263
Available at: https://openscholarship.wustl.edu/law_jurisprudence/vol7/iss2/7