Suchergebnisse

The legal academy has been unkind to originalism. Legal scholars have leveled withering criticism at originalists, maintaining that their faith in judges' abilities to divine historical intent and meaning is facile and that their underlying account of democratic authority is theoretically impoverished and insufficiently attentive to actual constitutional practice. Yet originalism is itself a robust part of that practice and as a political aesthetic is at least as healthy today as it was when Justice Scalia joined the Court in 1986. This Article considers the import of originalism's practical success for nonoriginalist constitutional theories. To the extent that such theories rely on sustained public acquiescence as a legitimating criterion for constitutional interpretation, the capacity of a methodology to translate political ends into the language of constitutional law should be of great interest. Nonoriginalist theories that rely on the legitimating power of public acceptance must account for originalism's political success as an important part of their theories of constitutional change rather than as an unfortunate exception to them. I sketch an exemplary model of originalism's political success that is placed in market terms. I suggest that proponents of originalism have taken advantage of a democratization of the market for constitutional methodologies that has placed a premium on populist selling points such as simplicity, class-based critiques of judicial elites, and nativism. Developing similar and richer models of the political success of constitutional methodologies will help to round out heretofore underspecified theories of how constitutional change occurs outside of the Article V process.

Originalism is a subject of both legal and political discourse, invoked not just in law review scholarship but also in popular media and public discussion. This Essay presents the first empirical study of public attitudes about originalism. The study analyzes original and existing survey data in order to better understand the demographic characteristics, legal views, political orientation, and cultural profile of those who self-identify as originalists. We conclude that rule of law concerns, support for politically conservative issue positions, and a cultural orientation toward moral traditionalism and libertarianism are all significant predictors of an individual preference for originalism. Our analysis suggests that originalism has currency not only as a legal proposition about constitutional interpretation, but also as a political commodity and as a culturally expressive idiom.

Originalism is a subject of both legal and political discourse, invoked not just in law review scholarship but also in popular media and public discussion. This Essay presents the first empirical study of public attitudes about originalism. The study analyzes original and existing survey data in order to better understand the demographic characteristics, legal views, political orientation, and cultural profile of those who self-identfy as originalists. We conclude that rule of law concerns, support for politically conservative issue positions, and a cultural orientation toward moral traditionalism and libertarianism are all significant predictors of an individual preference for originalism. Our analysis suggests that originalism has currency not only as a legal proposition about constitutional interpretation, but also as a political commodity and as a culturally expressive idiom.

Constitutional rules are norms whose application depends on an interpreter's identification of a set of facts rather than on her exercise of practical judgment. This Article argues that constitutional interpreters in the United States tend to resolve ambiguity over constitutional rules by reference to originalist sources and tend to resolve uncertainty over the scope of constitutional standards by reference to nonoriginalist sources. This positive claim unsettles the frequent assumption that the Constitution's more specifw or structural provisions support straightforward interpretive inferences. Normatively, this Article offers a partial defense of what it calls "rule originalism," grounded in the fact of its positive practice, its relative capacity for restrainingj udges, and, above all, its respect for the constitutional choice of rules versus standards. Finally, this Article argues that this limited justification for rule originalism suggests a liberalization of barriers to government institutional standing in cases involving the meaning of constitutional rules.

Originalism and living constitutionalism, often seen as opposing views, are not in conflict. So argues Jack Balkin, a leading constitutional scholar, in this long-awaited book. Step by step, Balkin shows how both liberals and conservatives play important roles in constitutional construction, and offers a way past the angry polemics of our era.

Originalism is a subject of both legal and political discourse, invoked not just in law review scholarship but also in popular media and public discussion. This Essay presents the first empirical study of public attitudes about originalism. The study analyzes original and existing survey data in order to better understand the demographic characteristics, legal views, political orientation, and cultural profile of those who self-identify as originalists. We conclude that rule of law concerns, support for politically conservative issue positions, and a cultural orientation toward moral traditionalism and libertarianism are all significant predictors of an individual preference for originalism. Our analysis suggests that originalism has currency not only as a legal proposition about constitutional interpretation, but also as a political commodity and as a culturally expressive idiom.