Academic

Colby on the New Originalism & Constraint

By Lawrence Solum

Thomas Colby (George Washington University Law School) has posted The Sacrifice of the New Originalism (Georgetown Law Journal, Vol. 99, No. 713, 2011) on SSRN. Here is the abstract:

This Article illuminate the fundamental truth that Originalism has achieved its intellectual respectability only at the necessary expense of its ballyhooed promise of constraint. The article recounts the theoretical advances of the New Originalism; argues that the New Originalism is substantially more defensible than was the Old one and is much better positioned to answer the scholarly critiques that demolished its predecessor; explains that these benefits come at the cost of judicial constraint. By its very nature, the New Originalism is a theory that affords massive discretion to judges in resolving contentious constitutional issues. The article also seeks to clear up some confusion that stems from an unfamiliarity with the jargon of the New Originalism, and it examines some of the ways in which originalists have sought, unsuccessfully, to avoid the consequences of the theory's evolution.

The Article suggests that there is something unsustainable in the current state of affairs. Originalism gains it salience in the public discourse by its continued reliance on a promise to constrain judges; it is that promise that brings it lay respect. Yet, it gains academic respect only by foregoing that promise. Originalism now garners esteem from much of both the public and the academy, but only because the public and the academy are speaking of very different things when they refer to originalism. Originalism thrives as both a political movement and as a scholarly theory, even though the features that make it attractive as a political movement render it impotent as a scholarly theory and vice versa.

Full post as published by Legal Theory Blog on March 15, 2011 (boomark / email).