Saikrishna Prakash, The Misunderstood Relationship between Originalism and Popular Sovereignty (February 22, 2010). Virginia Public Law and Legal Theory Research Paper. Available at SSRN: http://ssrn.com/abstract=1557170
This short essay contests the interpretational claim that fans of popular sovereignty often make, the assertion 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 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.
