Two Dogmas of Originalism

In the early 1950s, Willlard Quine’s Two Dogmas of Empiricism offered a devastating critique of logical positivism and the effort to distinguish “science” from “metaphysics.” Quine demonstrated that the positivists relied on dogmatic oversimplifications of both the world and human practices, and, in the end, suggested that our holistic natural experience cannot be reduced to purely logical explanations. In this piece, I argue that constitutional originalism—which, too, seeks to define a constitutional “science”—relies on similar dogmatisms. In particular, I contend that the “fixation thesis,” which claims that the constitutional judge’s first task is to fix the text’s semantic meaning at a particular historical moment, does not accurately describe the bulk of our current judicial practice. And, because semantic meaning arises predominantly from practice, the text’s semantic meaning does not depend upon an interpretive act of historical fixation.

I also challenge the so-called “constraint principle,” which asserts that the text’s fixed semantic meaning should constrain judicial efforts to construct legal rules. I suggest that we should think of this principle as embodying a particular normative theory of adjudication—one that would radically reduce both the number and kind of interpretive tools we have developed through centuries of practical experience. Thus, in the end I side with Edmund Burke and the English conservatives, who caution against replacing the collected wisdom of lived experience with the supposed certainties of abstract theory.