Georgetown Law Journal
“New originalism” presents a profound challenge to originalist determinacy – that is, to the notion that original constitutional meanings alone can resolve most constitutional controversies. While new originalists purport to seek out and adhere to original meanings of constitutional provisions, they acknowledge that some original meanings are too thin to fully resolve many constitutional questions. Such acknowledgment stands in sharp tension with traditional claims of originalist determinacy. While new originalism improves on “old originalism” in important ways, the former’s break from determinacy is not clean enough. New originalists are correct that it is neither epistemologically defensible nor normatively preferable to attribute complete answers to constitutional controversies to original textual meanings alone. This Article bolsters that point, responding to old originalists’ newest defenses of determinacy. Yet the Article criticizes new originalists for their own, more limited determinacy. While new originalists maintain that original meanings alone often are insufficient to resolve constitutional controversies, they overlook the epistemic uncertainties intrinsic in ascertaining original meanings themselves. This Article offers an “all the way down” critique of originalist determinacy. It challenges originalism’s ability not only to answer all constitutional questions, but also to settle reliably on single original meanings in the first place. The Article proposes to build on two of new originalism’s tools – its embrace of thin original meanings and its distinction between interpretation and construction – and to build as well on historicist critiques of originalism to create a new approach to epistemic uncertainty in constitutional interpretation. The approach is called “interpretive modesty.”
Heidi Kitrosser, Interpretive Modesty, 104 Georgetown L.J. 459 (2016), available at http://scholarship.law.umn.edu/faculty_articles/561.