In their Northwestern Law Review essay "Grounding
Originalism," (1) they continue their Arthurian quest o convince the legal world that
originalism has been and currently is our law.
"
Originalism refers to basically textualism applied in the constitutional sphere, with an eye toward identifying the original public meaning of the constitutional text at issue," Lee observed.
The topic for June 11 will be "Constitutional Interpretation:
Originalism or the Living Constitution?" with speaker William Adler.
This is an equivocation, rooted in the author's discomfort with constitutional
originalism. Wilentz in fact performs an originalist inquiry, substantiating his conclusion that anti-slavery readings of the convention's work "were more in line with what actually occurred in 1787 than others." Yet, in virtually the same breath he says that neither the antislavery nor the pro-slavery interpretation "is 'originalist.'" The Constitution, he asserts, is "a living document" whose meaning with regard to slavery emerged only in the political contentions of the post-founding decades.
To illustrate this, I describe the most prominent conception of originalism--public meaning
originalism. Then, I show that public meaning
originalism's process to ascertain the Constitution's original meaning treats the Declaration as one source of original meaning, and that its importance as a source therefore depends on the empirical-historical question of whether the original meaning in fact did privilege it.
This volume collects the authorAEs essays and lectures (most previously published) on various aspects of law: the law as a part of history; rights, including the role of the judge, the public interest, judicial misconduct, recusal, the right to die, Brexit, the Supreme Court, arbitration, detention without trial,
originalism, the constitution, freedom of expression, and the abuse of power; key individuals from legal and musical areas (Rudy Narayan, John Warr, Lord Diplock, Lord Scarman, Lord Bingham, Lord Mansfield, Sir Thomas More, Lord Denning, Lord Sumption, Bob Dylan, and Ewan MacColl); and other reflections.
Much of this attention has focused on the ingenious argument advanced by William Baude and Stephen Sachs that
originalism is "our law" and thus legally, as opposed to merely normatively, obligatory on constitutional interpreters.
The first, and the narrower, is to square two convictions: (a) there is a strong argument for
originalism in the context of the Impeachment clause and (b) there is no strong argument for
originalism in the context of the Equal Protection Clause.
Fourth,
originalism, the principal interpretive methodology of the legal right, is particularly susceptible to leftward drift.
originalism, then
originalism isn't fundamentally about the meaning
Behind Scalia's "
originalism" and "textualism," they claim, lies a conservative political point of view.
E Revisiting the 'Hard' Cases: Distinguishing
Originalism
