The James Wilson Foundation on Natural Rights and the American Founding

“Originalism: A Hollow Core?” — Garrett Snedeker at Starting Points Journal

JWI’s Deputy Director Garrett Snedeker discusses Donald Drakeman’s new book on Originalism and discusses its strengths and weaknesses.

Some excerpts:

“Don Drakeman’s ‘The Hollow Core of Constitutional Theory’ arrives at a time when Originalism faces three interrelated questions. First, does the success of the originalist project hinge on devotion to interpreting the text of the Constitution according to its original public meaning, the approach most in vogue at present, or are there alternative legitimate methods of interpretation? Second, do all members of the originalist choir sing in unison, or do they sing a variety of parts, only harmonizing after much rehearsal? Finally, is Originalism an end in and of itself, or a means toward other substantive ends? Drakeman offers his own answers to those questions, but not before assessing where and how Originalism has erred.”

“Drakeman would have us search not for the meaning of text qua text, but rather, like those early judges, for a reasonable distillation of the will of the lawmaker. And Drakeman would not lean so hard into restraint as Bork did if it means capturing a more reasonable distillation of the lawmaker.”

“…Drakeman fails to devote any time to what was the intramural debate within conservative legal circles for decades—a debate that continues to this day. Bork and Scalia represented one pole that believed that the Constitution can be understood on its own terms while the late Harry Jaffa and Hadley Arkes (and to some extent Clarence Thomas) believed that the Constitution can only be understood in light of its Natural Law underpinnings.  I was savoring the possibility that Drakeman would reconcile his approach to this most noteworthy of intramural debates. And yet, Drakeman did not attempt to do so, leaving his views a mystery, at least in this book.”

Read the full piece here.

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Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790