Title

Originalism, the Why and the What

Document Type

Article

Publication Date

2013

Abstract

On all tenable theories about the nature of law, there is a place for the following story. We do not agree about what we ought to do, but we do agree that we need to settle the matter. So we designate a person or group of people to decide what norm or norms should govern us with respect to the matters in dispute.That person might be a chief executive; that group might be a legislature or a constitutional convention. Regardless, their job in all cases is to come up with norms in order to settle what is to be done in some domain of social life.

Now, after this person or group has decided on the appropriate norms to govern the matter, they then must communicate to the rest of us what those norms are. For their job was not merely to settle the matter among themselves. It was to settle the matter for all of us. So they are faced with the following task: they must express the norms they have chosen in such a way that the rest of us understand what those norms are. Because we cannot ascertain the norms they have in mind through telepathy, they must communicate them by means of symbols — orally, using sounds; in writing, using marks; through semaphore, using flags; by smoke signals, etc. The job of the rest of us — the interpreters — is to discover what norms the group or person we tasked with choosing the norms actually chose.

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