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The Truth about Originalism

The Truth about Originalism whitley kaufman University of Massachusetts Lowell despite its relatively small number of advocates, the theory of constitutional interpretation known as "Originalism" continues to enjoy an outsized influence in the United States. Originalists themselves like to say that "we are all Originalists now," and claim that their theory has become the obvious, unstated position of all responsible lawyers, judges, and politicians. Indeed, they say, how could anyone deny the truth of Originalism, if all it means is that we as judges, lawyers, and citizens are bound to follow the text of the Constitution as the supreme law of the land, rather than just make up the law to suit our present preferences? Nor are there, its advocates say, any substantial competing theories of constitutional interpretation; the leading alternative, the idea of a "Living Constitution" is more a metaphor than a systematic theory. So has Originalism become the orthodoxy of Constitutionalism? To the contrary, as we will show here, it is not even a plausible theory of constitutional interpretation at all. Consider some of the radical political conclusions drawn by Originalists: the Obama health care plan is unconstitutional, the majority of the New Deal is illegitimate, the Endangered Species Act http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png The Pluralist University of Illinois Press

The Truth about Originalism

The Pluralist , Volume 9 (1) – Mar 1, 2014

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Publisher
University of Illinois Press
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Copyright © University of Illinois Press
ISSN
1944-6489
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Abstract

whitley kaufman University of Massachusetts Lowell despite its relatively small number of advocates, the theory of constitutional interpretation known as "Originalism" continues to enjoy an outsized influence in the United States. Originalists themselves like to say that "we are all Originalists now," and claim that their theory has become the obvious, unstated position of all responsible lawyers, judges, and politicians. Indeed, they say, how could anyone deny the truth of Originalism, if all it means is that we as judges, lawyers, and citizens are bound to follow the text of the Constitution as the supreme law of the land, rather than just make up the law to suit our present preferences? Nor are there, its advocates say, any substantial competing theories of constitutional interpretation; the leading alternative, the idea of a "Living Constitution" is more a metaphor than a systematic theory. So has Originalism become the orthodoxy of Constitutionalism? To the contrary, as we will show here, it is not even a plausible theory of constitutional interpretation at all. Consider some of the radical political conclusions drawn by Originalists: the Obama health care plan is unconstitutional, the majority of the New Deal is illegitimate, the Endangered Species Act

Journal

The PluralistUniversity of Illinois Press

Published: Mar 1, 2014

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