ORIGINALISM, RULE OF LAW AND HUMAN RIGHTS

In this paper I shall defend a moderate version of original meaning originalism in constitutional interpretation. First, I will explain some relevant distinctions and qualifications related to originalism and to the specific version of the theory of constitutional interpretation which I will present here. Next, I will briefly compare this version of originalism with the view traditionally regarded as originalism’s natural opponent, the doctrine of the living Constitution, and I will argue that these two views are in fact compatible with each other once certain reasonable qualifications have been made to both of them. I shall then offer arguments in favor of the version of originalism presented here, which mainly have to do with the relation between a democratic system under a written constitution and the concepts of the rule of law and human rights. Finally, I will defend this version of originalism against views that hold that, in certain constitutional cases, once the original meaning of the Constitution, so to speak, “runs out”, non-originalist methods should be employed to reach a legal solution.