For some unknown reason that SSRN cannot explain, my paper, The Gravitational Force of Originalism, that I will be presenting this week at the Fordham conference on “The New Originalism and Constitutional Law,” disappeared from SSRN shortly after I blogged about it. Perhaps it was the “repellent force of living constitutionalism” that drove it from the interweb. At any rate, here is the abstract:
ABSTRACT: In Part I of this essay, I describe four aspects of the New Originalism: (1) The New Originalism is about identifying the original public meaning of the Constitution rather then the original framers intent; (2) The interpretive activity of identifying the original public meaning of the text is a purely descriptive empirical inquiry; (3) But there is also a normative tenet of the New Originalism that contends that the original public meaning of the text should be followed; (4) Distinguishing between the activities of interpretation and construction identifies the limit of the New Originalism, which is only a theory of interpretation. In Part II, I then discuss how originalism can influence the outcome of such cases as D.C. v. Heller, McDonald v. Chicago, and NFIB v. Sebelius. I suggest that, so long as there are justices who accept the relevance of original meaning, originalism can exert a kind of “gravitational force” on legal doctrine even when, as in McDonald and NFIB, the original meaning of the Constitution appears not to be the basis of a judicial decision.
You can download the paper here.