David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
The new originalism is the latest de riguer theory of constitutional interpretation. No longer concerned with the majoritarianism or judicial restraint that were the hallmarks of Borkian/Bergerian originalism, the new originalists blithely dismiss precedent as having little, if any, constraining force and contend that the countermajoritarian difficulty is of little concern (though they are not alone in this regard). Parallel to this, there is little concern in the new originalist camp with judicial activism. Suffice it to say, it is not a modest theory. The thesis of this short paper is that perhaps that the new originalists suffer from a form of cognitive dissonance. That is to say, one wonders if the new originalists are not dealing in constitutional reality and are instead rationalizing a constitutional vision that does not square with history or the empirical evidence. It is well-documented that originalists on the bench are far from consistent in their application of originalism. Worse yet, when the justices (both liberal and conservative) utilize originalists arguments, ideological cherry-picking inevitably follows. More than that, the new originalists seem uniformly resistant to recognizing that constitutional law does not happen - and cannot happen - in the original public meaning vacuum they advocate. It is more profitable to understand decisions as the result of the historical and cultural zeitgeist the justices find themselves in. In fact, it is ironic that originalism itself is rather plainly a product of the (partial) triumph of the New Right political movement! If I am right about this, I think it is time for the new originalists to explain how their constitutional vision fits into our historical and empirical reality. If they cannot reconcile their theory with this, perhaps it is time that the new originalists admitted their dissonance and developed some intellectual modesty.
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library||
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Frederick Mark Gedicks, Conservatives, Liberals, Romantics: The Persistent Quest for Certainty in Constitutional Interpretation.
Bradley W. Miller, Beguiled by Metaphors: The 'Living Tree' and Originalist Constitutional Interpretation in Canada.
Steven D. Smith (2011). That Old-Time Originalism. In Grant Huscroft & Bradley W. Miller (eds.), The Challenge of Originalism: Essays in Constitutional Theory. Cambridge University Press.
Tara A. Smith, Why Originalism Won't Die - Common Mistakes in Competing Theories of Judicial Interpretation.
Lawrence B. Solum (2011). What is Originalism? : The Evolution of Contemporary Originalist Theory. In Grant Huscroft & Bradley W. Miller (eds.), The Challenge of Originalism: Essays in Constitutional Theory. Cambridge University Press.
Brian H. Bix (2011). Constitutions, Originalism, and Meaning. In Grant Huscroft & Bradley W. Miller (eds.), The Challenge of Originalism: Essays in Constitutional Theory. Cambridge University Press.
Jeffrey Goldsworthy (2009). Constitutional Interpretation: Originalism. Philosophy Compass 4 (4):682-702.
Added to index2009-01-28
Total downloads10 ( #152,086 of 1,099,860 )
Recent downloads (6 months)0
How can I increase my downloads?