Originalism Debated

Another outbreak of debate about originalism as the proper mode of constitutional interpretation has broken out all around the blogosphere, particularly among some of my favorite legal scholars. It began with Larry Solum lamenting the fact that so many legal scholars continue to use original intent and original public meaning interchangably in conversation and writing. That prompted agreement from Ilya Somin at the Volokh Conspiracy and disagreement from Brian Leiter (who rejects originalism entirely). Randy Barnett, one of the primary advocates of liberal originalism, hasn't had much to say yet because he's busy, but Jack Balkin jumped in with some thoughts. Solum then posted more thoughts on the subject, then a longer post that goes into a lot more depth on various theories of constitutional interpretation, particularly in response to Leiter and Marty Lederman. Personally, my preferred interpretive theory falls somewhere in the Jack Balkin / Randy Barnett / Akhil Amar nexus, with an application of original principles regardless of the original expected application (see here for an excellent essay by Balkin on that subject).

Tags

More like this