After falling out of favor during the twentieth century, originalism has returned as a compelling and popular interpretive theory. Modern originalism is typically associated with political conservatives. In Reexamining Originalism, I argue that a progressive form of originalism is both more faithful to the Constitution and more similar to early originalism than conservative originalism. The key difference is that progressive originalism respects the Constitution's status as secondary law, whereas conservative originalism is overly concerned with preserving primary applications of law.

This thesis examines the consequences of taking a conversational approach to legal interpretation. This is meant to contrast with and improve the argument given in Ronald Dworkin's Law's Empire.

This thesis analyzes competing theories of constitutional interpretation. Originalism as traditionally understood maintains that proper constitutional interpretation involves consulting the historical record for what the words meant at the time of ratification. This position is in stark opposition to moral reading, which views certain constitutional provisions as embodying broad philosophical principles that must be interpreted according to the best understanding of our constitutional commitments. Originalism seeks historical truths of constitutional meaning whereas moral reading aims primarily toward ethical adjudication and constitutional perfection. I track the origins of originalism and its development in American legal scholarship while analyzing the interpretive shortcomings and ethical dilemmas the theory poses. I ultimately reject originalisms as traditionally conceived as antithetical to American constitutional ideals, as blind to the teachings of this Nation’s jurisprudential history, and as more theoretically problematic than the moral reading it attempts to combat. I further contend that the newest wave of originalist thinking, which recognizes broad constitutional commitments, is no more than moral reading in disguise. I conclude that moral reading is a more defensible theory of constitutional interpretation and that new originalists ultimately agree.

This thesis concerns a philosophical analysis of originalism in a context that has not yet received sufficient attention: in the context of old constitutional regimes. Through this lens, I argue that originalism becomes something lesser in that both the normative justification and legitimacy originalism once held begins to withdraw from the theory’s principled commitments. In other words, the nature of old constitutions begins to reject a normative argument for an originalist approach. The thesis bases this analysis on one originalist theory in particular for the sake of brevity: Lawrence Solum’s public meaning originalism. It proceeds through two avenues of argument: originalism as it relates to 1) historical analysis and the interpretation-construction distinction and 2) stare decisis and democratic legitimacy. Taken together, these avenues point to originalism’s fading normative justification and legitimacy in light of the challenges that old constitutions and their characteristics pose for the judicial philosophy. / Thesis / Master of Arts (MA)

O presente trabalho tem por objeto o estudo do originalismo, em várias de suas versões, no contexto da interpretação constitucional. No primeiro capítulo são tecidas considerações gerais sobre a interpretação jurídica, bem como princípios e métodos específicos da interpretação constitucional, com destaque para o elemento histórico. No segundo capítulo, são analisadas as razões que ensejaram o surgimento e o desenvolvimento do originalismo nos Estados Unidos, onde é considerado um dos mais importantes meios de auto-contenção judicial. A seguir, é examinada a presença de abordagens similares em outros países. Nos capítulos finais, é investigada a utilização de argumentos originalistas em questões constitucionais brasileiras. A tese procura ressaltar a importância da técnica originalista e sua utilidade como critério complementar a outros elementos de interpretação, bem como sua efetividade como meio de evitar os excessos do ativismo judicial / The purpose of this paper is the study of originalism in several of its versions within the context of constitutional interpretation. The first chapter contains general considerations regarding legal interpretation as well as principles and methods specific to constitutional interpretation, with emphasis on the historic element. The second chapter analyzes the reasons that brought about the appearance/emergence and development of originalism in the United States, where it is regarded as one of the leading means of judicial selfrestraint. Next, the existence of similar approaches in other countries will be examined and the final chapters will investigate the use of originalistic arguments in Brazilian constitutional questions. This thesis seeks to highlight the importance of the originalistic technique and its use as a criterion complementary to other elements of interpretation, as well as its effectiveness as a way to avoid the excesses of judicial activism.

O presente trabalho tem por objeto o estudo do originalismo, em várias de suas versões, no contexto da interpretação constitucional. No primeiro capítulo são tecidas considerações gerais sobre a interpretação jurídica, bem como princípios e métodos específicos da interpretação constitucional, com destaque para o elemento histórico. No segundo capítulo, são analisadas as razões que ensejaram o surgimento e o desenvolvimento do originalismo nos Estados Unidos, onde é considerado um dos mais importantes meios de auto-contenção judicial. A seguir, é examinada a presença de abordagens similares em outros países. Nos capítulos finais, é investigada a utilização de argumentos originalistas em questões constitucionais brasileiras. A tese procura ressaltar a importância da técnica originalista e sua utilidade como critério complementar a outros elementos de interpretação, bem como sua efetividade como meio de evitar os excessos do ativismo judicial / The purpose of this paper is the study of originalism in several of its versions within the context of constitutional interpretation. The first chapter contains general considerations regarding legal interpretation as well as principles and methods specific to constitutional interpretation, with emphasis on the historic element. The second chapter analyzes the reasons that brought about the appearance/emergence and development of originalism in the United States, where it is regarded as one of the leading means of judicial selfrestraint. Next, the existence of similar approaches in other countries will be examined and the final chapters will investigate the use of originalistic arguments in Brazilian constitutional questions. This thesis seeks to highlight the importance of the originalistic technique and its use as a criterion complementary to other elements of interpretation, as well as its effectiveness as a way to avoid the excesses of judicial activism.

The Federalist Society, acting as a Political Epistemic Network, has effectively employed a long-term strategy to engineer a Supreme Court that propagates conservative legal ideology. The organizational structure of the Federalist Society finds, recruits, and retain members who will wield the organizational strategies of the organizations to achieve policy outcomes not just for members of the organization, but for the greater population. This thesis demonstrates a clear relationship between the long-term ideological and institutional influence of the Federalist Society and the U.S. Supreme Court. This significant relationship poses a fundamental threat to the execution of equal protection under the law and an erosion of democratic norms. This thesis proposes possible legislative and constitutional remedies to counter the increasing polarization of the Supreme Court, including proposed reforms such as term limits and restructuring the court which could make inroads to promoting neutrality on the Court and re-establishing a greater degree of public trust. / Master of Arts / The modern Supreme Court must contend with an unprecedented degree of outside influence from ideologically driven special interest groups. Since 1982, there is no outside special interest group of more consequence than the Federalist Society. Modern special interest groups can boast deeper financial reserves, decades of relationship with policy makers, and ideological motivations that are not simply deeply held, but singularly motivating. This is particularly true for the Federalist Society. The conservative legal movement has effectively employed a long-term strategy to shape the Court in its own image, minimizing a reliance on an electorate that is more diverse and historically less likely to embrace conservative principles. Above any other political ally or mechanism, that strategy and its implementation has relied on the commitment, financing, and participation of the Federalist Society. This thesis examines the breadth and consequences of the Federalist Society's influence on the modern Court and proposes theoretical reforms that could help ensure a more ideologically balanced court.

Public-meaning originalists contend that judges properly interpret the Constitution only when they discover and apply its “original public meaning”—how the public understood the Constitution at the time it was adopted. Public-meaning originalism is premised on the “fixation thesis”—the meaning of any constitutional text is fixed when it is adopted. Concerns of the present, therefore, cannot affect constitutional meaning. Public meaning originalists acknowledge that the search for the fixed original meaning is not always successful, but it is always ontologically “there” to be found, even if epistemologically we sometimes fail to find it. The fixation thesis underwrites the powerful rhetoric of fidelity originalists deploy against nonoriginalists. Originalists insist that judges who interpret the Constitution using nonoriginalist approaches are “making up” constitutional meaning. But if original public meaning does not exist in the past as a fact which present interpreters can objectively retrieve, public-meaning originalists are equally guilty of “making it up.” The public-meaning enterprise thus rises or falls with its ontological claim that original public meaning is a fact in the past which anyone from the present can recover and apply without altering its objective character. Most public-meaning originalists have ignored the philosophical hermeneutic thesis that any investigation of the past is also shaped by the perspective of the interpreter in the present; the meaning of any text is mutually constituted by past and present. In this view, meaning does not exist in the past as a fact, but is created by the very interpretive effort to find it. Only two public-meaning originalists have defended the fixation thesis against this critique. Keith Whittington rejected it outright in his early work, while Lawrence Solum recently argued its compatibility with fixation. Both arguments fail. “Fixed constitutional meaning” and the other purported objectivities in which public-meaning originalists wrap their theory are no less touched by interpretive subjectivity than the theories new originalists attack. Like all human inquiries into proper action in particular situations, constitutional interpretation is necessarily affected by particularities of the judge, the issue before her, and their relation to constitutional history and contemporary constitutional imperatives. None of this is subject to adjudication by a priori rule or objective method, as public-meaning originalists imagine.No one is “faithfully” interpreting the Constitution in the way public-meaning originalists imagine. Everyone is doing the same interpretive thing, trying to connect the exigencies of the present with a document more than two centuries in force. The fixation thesis is false.

Originalism is a legal framework of constitutional interpretation that re-emerged in the United States in the 1970's as part of the conservative legal movement. In the decades since, originalism has grown in prominence both in government institutions and interest groups. Using critical discourse analysis, this research identifies the frames and narratives developed in originalism and examines how those frames and narratives are used by network members in friend of the Court briefs in Shelby County v. Eric Holder 2013 and Students for Fair Admissions v. Regents of Harvard University 2022. This research finds three dominant frames in the originalist literature and demonstrates how these frames are deployed in amicus brief in support of the petitioners in each of the two cases. This research provides a sociological perspective on the use of originalism and how it is used to reverse civil rights gains.

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