The Gravitational Force of Originalism
Randy E. Barnett
Georgetown University Law Center
February 15, 2013
Fordham Law Review, Forthcoming
Georgetown Public Law Research Paper No. 13-010
In part I of this essay, prepared for the Fordham conference on “The New Originalism and Constitutional Law,” I describe four aspects of the New Originalism: (1) The New Originalism is about identifying the original public meaning of the Constitution rather than the original framers intent; (2) The interpretive activity of identifying the original public meaning of the text is a purely descriptive empirical inquiry; (3) But there is also a normative tenet of the New Originalism that contends that the original public meaning of the text should be followed; (4) Distinguishing between the activities of interpretation and construction identifies the limit of the New Originalism, which is only a theory of interpretation. In part II, I then discusses how originalism can influence the outcome of such cases as D.C. v. Heller, McDonald v. Chicago, and NFIB v. Sebelius. I suggest that, so long as there are justices who accept the relevance of original meaning, originalism can exert a kind of “gravitational force” on legal doctrine even when, as in McDonald and NFIB, the original meaning of the Constitution appears not to be the basis of a judicial decision.
Number of Pages in PDF File: 25
Keywords: Originalism, Supreme Court, Congress, Commerce Clause
JEL Classification: K00, K30, K39Accepted Paper Series
Date posted: February 25, 2013 ; Last revised: February 26, 2013
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