To reach this conclusion, I apply a novel form of originalism
for answering constitutional questions where the text runs out.
As an unanchored methodology, floating in the progressive ether of the legal academy, the new originalism
has quickly drifted leftward, as evidenced in Jack Balkin's "living originalism
" and most recently in Steven Calabresi's argument that originalism
supports same-sex marriage.
The Curious Twinning of Originalism
and Living Constitutionalism 692 B.
Critics of Scalia's originalism
claim that this approach to constitutional interpretation exaggerates the extent to which we can understand the intentions of those who wrote the original Constitution or the Fourteenth Amendment.
in constitutional interpretation, such as originalism
and localism, have
has experienced significant evolution since the time it was initially deemed dead and buried in Canada.
maintains both that constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative.
whether or not they happen to be right that originalism
is our law.
O3) Therefore, as a practical matter, the only available alternative to originalism
in constitutional interpretation is for the judge to follow what she thinks the constitutional text ought to mean.
The goal is to introduce law students to the main lines of first amendment doctrine, to place that doctrine in its historical setting and its social setting, and to ensure that students connect particular doctrines and lines of doctrinal development with more general approaches to constitutional interpretations such as originalism
and natural law/natural rights thinking.
Scalia was proud of Heller not only because it vindicated the Second Amendment, which until then had been in a sort of legal limbo at the high court, but because he saw it as a "vindication of originalism
," the theory of legal interpretation that he did so much to help popularize and establish.
According to this view, original meaning originalism
actually rejects the conception of popular sovereignty I described earlier.