Originalism as a theory of legal change

Originalism is usually called a theory of interpretation, a particular way to read a text. Best understood, though, originalism is much more than that. It's a theory of the law: a particular way to understand where our law comes from, what it requires, and how it can be changed. This view start...

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Bibliographic Details
Published in:Harvard journal of law and public policy 2015-06, Vol.38 (3), p.817
Main Author: Sachs, Stephen E
Format: Article
Language:English
Subjects:
Analysis
Attorneys
Constitutional interpretation
Constitutional law
Evaluation
Legal arguments
Legal positivism
Original intent (Law)
Online Access:Get full text
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Summary:Originalism is usually called a theory of interpretation, a particular way to read a text. Best understood, though, originalism is much more than that. It's a theory of the law: a particular way to understand where our law comes from, what it requires, and how it can be changed. This view starts with a common assumption of legal systems, that the law stays the same until it's lawfully changed. Originalism as adherence to the Founders' law is complicated and simple at the same time. It's extremely complicated, because people have to know the content of the Founders' law in its full glory -- interpretive rules, context, rules of change, and so on. But it's also very simple, because it makes the basis for originalism very easy to understand: our law stays the same until it's lawfully changed. That ought to be the originalist's slogan, because originalism is a theory of legal change.
ISSN:0193-4872
2374-6572