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
5)
Originalism has experienced significant evolution since the time it was initially deemed dead and buried in Canada.
Originalism 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.
