Understanding the Constitution

By: Robert Bork & John McGinnis

Robert Bork - In the context of United States law, originalism is a concept regarding the
interpretation of the Constitution that asserts that all statements in the constitution must be
interpreted based on the original understanding "at the time it was adopted".

This concept views the Constitution as stable from the time of enactment and that the meaning of its
contents can be changed only by the steps set out in Article Five. This notion stands in contrast to
the concept of the Living Constitution, which asserts that the Constitution should be interpreted
based on the context of current times and political identities, even if such interpretation is different
from the original interpretations of the document. Originalism should not be confused with strict
constructionism.

The conflict to which Judge Bork alludes is the most recent installment in the ongoing American
discussion on the function of judicial review in a representative democracy. This argument, which is
currently at a turning point, essentially concerns the place of constitutional ideals in American life. It's
feasible that Robert Bork's theories—along with those of a few other like-minded legal theorists—will
soon come to dominate constitutional law.

Proponents of originalism argue that originalism has historically been the primary method of
legal interpretation in America from the time of its founding until the time of the New Deal, when
competing theories of interpretation grew in prominence. Critics of modern originalism argue that
it is rooted in conservative political resistance to the Brown v. Board of Education Supreme
Court decision, as it was used by proponents of segregation to argue in opposition to civil rights
legislation during the 1960s. Originalism is an umbrella term for interpretative methods that hold
to the "fixation thesis", the notion that an utterance's semantic content is fixed at the time it is
uttered. Two alternative understandings about the sources of meaning have been proposed:

Professor John McGinnis explains the importance and necessity of Amendments that improved
the Constitution or corrected its faults. Regardless of whether one thinks the Amendments and
their effects were good or bad, they have to be taken into account as a legitimate part of the
Constitution.

The Constitution and the Language of the Law

Abstract
A long-standing debate exists over whether the Constitution is written in ordinary or legal
language. Yet no article has offered a framework for determining the nature of the Constitution’s
language, let alone systematically canvassed the evidence.
This Article fills the gap. First, it shows that a distinctive legal language exists. This language in
the Constitution includes terms, like “Letters of Marque and Reprisal,” that are unambiguously
technical, and terms, like “good behavior,” that are ambiguous in that they have both an ordinary
and legal meaning but are better interpreted according to the latter. It also includes legal
interpretive rules such as those that tell readers whether a term should be given its legal
meaning or its ordinary meaning.
The Article explains how to determine whether a document is written in the language of the law.
Unsurprisingly, the most important factor is the language of the document itself. The pervasive
presence of technical legal terms provides strong evidence that a document is written in the
language of the law because ordinary language cannot easily account for even a small number
of legal terms. The purpose of the document also counts. Insofar as it is written to inform
officials of their duties, a document is more likely to be written in legal language because that
language allows more precision. The language of similar documents provides additional
evidence. That other constitutions at the time were written in the language of the law militates in
favor of reading the Constitution in that same language.
The Article supplies strong evidence that the Constitution is written in the language of the law.
The Article is the first to count the legal terms in the Constitution and approximates them at one
hundred. Moreover, the Constitution’s text assumes the application of legal interpretive rules,
both blocking the operation of certain legal interpretive rules and calling for the application of
others. Finally, the judges and legislators charged with implementing the Constitution in the
early Republic frequently deployed legal interpretive rules to resolve contested issues.
The Constitution’s legal language has important theoretical and practical significance.
Theoretically, it suggests that original-methods originalism is the correct form of originalism,
because the Constitution’s legal interpretive rules are crucial to accurately determine its
meaning. Practically, the richness of the idiom of the language of the law provides resources to
address otherwise unresolvable interpretive questions. As a result, much of modern originalist
scholarship about specific provisions depends for its force on reading the Constitution in the
language of the law.