Archive | Originalism and its Critics

Today was the second day of Originalism and its Critics, which I’m co-teaching with Eric Posner. We read Printz, Jud Campbell’s article on commandeering, and an article by John Manning on the use of the Federalist Papers. Two general thoughts on those readings: 1. On Printz and commandeering, I have already said that I think […]

We very much enjoyed our week of blogging at the Conspiracy and once again want to thank Eugene, the other Conspirators, and the commenters.  Many comments raised important and interesting points that we were not able to discuss in 5 posts.  Those interested will find our views elaborated at much greater length in the book. […]

Frequently, it is argued that the problem with originalism is that it forces us to be governed by an old Constitution that is out of date. We think that this claim gets it backwards: nonoriginalism impedes the Constitution from being improved through the amendment process. It has sometimes been thought that the amendment process is […]

Professors Rappaport and Ramsey both have posts up on the Originalism Blog reacting to our originalism course (and Eric Posner’s posts about it). Here is Professor Rappaport, and here is Professor Ramsey.

Precedent poses a problem for originalism, because much of Supreme Court jurisprudence is nonoriginalist.  Originalists have had two ways of treating such precedent.  The first is to dismiss nonoriginalist precedent as inconsistent with the Constitution. Under this view, the Constitution must be interpreted according to its original meaning because nothing in the document permits precedent […]

Originalism holds that the Constitution should be interpreted in accordance with its original meaning.  But how does one determine the original meaning?  There have been two leading theories about how to do this: original intent and original public meaning. We propose a third theory of how to determine the original meaning (or, put differently, a […]

There are a number of ways of attempting to justify following the Constitution’s original meaning.  Some people believe that originalism constrains judges.  Others see the Constitution as the choice of the people under a popular sovereignty view.  We seek to justify following both the Constitution and the original meaning based on the normative desirability of […]

We are very happy to be blogging at the Volokh Conspiracy about our new book, Originalism and the Good Constitution, which has just been published by Harvard University Press.  We want to thank both Eugene and the other Conspirators for the opportunity to offer our views on originalism. Our book presents a variety of new, […]

My new colleague Eric Posner has a post on his new blog about a class that we will be teaching together this quarter, Originalism and its Critics: I have long been skeptical of originalism, and my interest in it is more sociological than intellectual. I hope to learn from this seminar why originalism is appealing […]