Is Originalism Too Conservative?

Abstract:     
Originalism as an approach to constitutional theory and constitutional interpretation is often associated with conservative politics. Is originalism a principled theory of constitutional interpretation, or is it merely a cover for reaching politically conservative results in court? Is originalism theoretically interesting independent of its connection to conservative politics? This essay argues that originalism is a principled theory of constitutional interpretation and not merely a rationalization for conservatism. The association of conservative politics with originalism is not accidental, however, and conservatives are often likely to find originalism to be a more normatively attractive approach to constitutional interpretation than liberals generally will. Focusing on originalist theory rather than judicial decision-making, this essay considers the ways in which originalism intersects with conservatism and the ways in which originalism might diverge from conservatism.

Number of Pages in PDF File: 13

Keywords: originalism, constitutional interpretation, judicial review, conservatism, Reagan, Scalia

Accepted Paper Series