The seemingly interminable tacit assumptions about the nature of language and the ontological status debate over originalism is grounded on of the Constitution. It assumes that language represents the world, that the Constitution is something that has an ontologically independent existence, and that propositions of constitutional law are true if they accurately represent the objective Constitution. This Article offers a radical critique of those apparently obvious, commonsensical premises. It presents an anti-representational, anti-foundational challenge to the premises underlying the debate over originalism.
First, building on the work of Richard Rorty and Robert Brandom in philosophy and Philip Bobbitt and Dennis Patterson in jurisprudence, it outlines how we might move beyond the notion of an ontologically independent, objective Constitution. The alternative is to understand our Constitution as constituted by our constitutional practices, particularly our practices of constitutional argument and decision. Second, this Article offers an analysis of propositions of constitutional law and their truth, that explains such statements without the notion of representing the objective Constitution and without the notibn that the truth of such proposition is a matter of the accuracy of the representation by such statements. Third, this Article presents and rebuts the arguments that might be made against such an approach. It concludes by showing how, in the face of this analysis, the tacit premises of the debate over originalism collapse and with them, the debate over originalism as we know it.
This Article thus shows the path to transcend the debate, without victory for either side. Attention to the tacit philosophical premises of the debate over originalism, and the more plausible anti-foundational, anti-representational alternative, allows us finally, after so many decades, the possibility that we may leave this fruitless debate behind
The Anti-Foundational Challenge to the Philosophical Premises of the Debate over Originalism,
Dick. L. Rev.
Available at: https://ideas.dickinsonlaw.psu.edu/dlra/vol119/iss1/4