The Misunderstood Relationship between Originalism and Popular Sovereignty
The Misunderstood Relationship between Originalism and Popular Sovereignty
Saikrishna B. Prakash, 31 Harv. J.L. & Pub. Pol’y 485 (2008)
This Essay does not take issue with those who celebrate popular sovereignty. Nor does it deny that the Constitution’s legitimacy arises by virtue of numerous acts of ratification, most of which took place several generations ago. Those are debates for another day. Instead, this Essay contests the interpretive assertion that proponents of popular sovereignty often make: that originalism is a legitimate means of making sense of the Constitution merely or primarily because of the manner in which the Constitution was ratified and amended. This position unduly narrows the strength and appeal of originalism, which, properly understood, has nothing to do with how the legal document in question came into being. Legal documents generally ought to be understood through the originalist lens, whether those documents are the products of petty dictators or the united voice of the people. Indeed, any text or utterance, legal or not, should be understood through the originalist lens.