Originalism and the Importance of Constitutional Aspirations

Authors

Richard B. Saphire

Abstract

Originalism and nonoriginalism represent competing approaches to constitutional interpretation. Originalism insists that the understandings or intentions of the Constitution's drafters and ratifiers provide the principal, if not the exclusive, nontextual sources of constitutional meaning, while nonoriginalism insists that meaning can also be derived legitimately from more contemporary sources of political and moral values. In his recent book, The Constitution in the Courts: Law or Politics?, Professor Michael Perry abandons nonoriginalism in favor of a theory of originalism which he develops and defends.

This Article examines and evaluates Perry's defense of originalism. The author argues that Perry's version of originalism is premised on a conception of the Constitution which differs importantly from that underlying most nonoriginalist theory. While Perry's theory presents originalism in its most sophisticated and, in many ways, most attractive form, this Article concludes that Perry's theory fails to take seriously the importance of constitutional aspirations.

Recommended Citation

Richard B. Saphire, Originalism and the Importance of Constitutional Aspirations, 24 Hastings Const. L.Q. 599 (1997).
Available at: https://repository.uclawsf.edu/hastings_constitutional_law_quaterly/vol24/iss2/7