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19 Harv. J. L. & Pub. Pol'y 351 (1995-1996)
Nonoriginalist Perspective on the Lessons of History, A

handle is hein.journals/hjlpp19 and id is 367 raw text is: A NONORIGINALIST PERSPECTIVE ON THE LESSONS OF HISTORY MICHAEL C. DoRF* Usually when judges, lawyers and legal scholars refer to norma- tive indeterminacy with respect to originalism, they have in mind something like Ronald Dworkin's distinction between a concept and a conception.' For example, there may be agreement that the Constitution contains a concept of equality, but there is disa- greement as to what conception of equality the broad concept entails. Originalism tries to resolve the disagreement by prefer- ring the conception that was widely shared at the time the rele- vant constitutional language was adopted. Very few people who call themselves originalists consistently prefer the Framers' conceptions. Thus, for example, when Judge Bork states that the Equal Protection Clause2 may be interpreted to contain a broader norm of equality than that held by the draft- ers and ratifiers of the Fourteenth Amendment,3 he adopts a nonoriginalist approach to specifying the content of a textually indeterminate norm. Let us put aside the semantic debate over the definition of originalism, and assume that originalism is at least a presumptive strategy for dealing with normative indeterminacy. In the ab- sence of countervailing considerations, the originalist exhibits a preference for the normative views of the Framers. In justifying their approach, nonoriginalists often make the point that originalism does not solve the problem of normative indeterminacy. The nonoriginalists argue that the views of the Framers are themselves indeterminate. The argument rests on a number of familiar problems: (1) How do we ascertain the intent of a Constitutional Convention composed of multiple delegates from different States? (2) Do we look to the understanding of the drafters or the ratifiers? (3) What do we do where the text ap- * Associate Professor, Columbia University School of Law. In converting my oral pres- entation into this Article, I made a number of substantial revisions in response to the comments of Akhil Amar and Michael Perry. Sherry Colb and Gerald Neuman provided helpful suggestions on an earlier draft. 1. See Ronald Dworkin, What is Equality? Part 3: The Place of Libery, 73 lowA L. REv. 1, 6 (1987). 2. See U.S. CoNsr. XIV, § 1 (No State shall ... deny to any person within its jurisdic- tion the equal protection of the laws.). 3. See ROBERT H. BORK, THE TmrNG OF AMERCA 150 (1990).

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