Abstract

http://ssrn.com/abstract=2278473
 


 



The Challenge of, and Challenges to, Originalism


Lee J. Strang


University of Toledo College of Law

August 9, 2013

The Challenge of Originalism: Theories of Constitutional Interpretation, (Grant Huscroft & Bradley W. Miller, eds.). Cambridge, Cambridge University Press. 2011. PP. IX, 305

Abstract:     
The Challenge of Originalism does many things well: it showcases the sophistication of current originalist scholarship; it displays the resonance that originalist arguments have with diverse and international audiences; and it reminds us that originalists are far from having won the debate. The Challenge of Originalism brings together some of the leading lights of originalist scholarship, and puts them in conversation with each other and with prominent critics.

The Challenge of Originalism also, as all collections must, leaves out some important topics. Most prominent is originalism’s relationship to nonoriginalist precedent, a subject of significant scholarly interest over the past ten years. Also, The Challenge of Originalism introduces some of the key recent originalist moves, such as incorporating the concept of constitutional construction, without fully elucidating them.

The essays in The Challenge of Originalism are consistently nuanced and thought-provoking. The Challenge of Originalism includes introductory material to originalism and the debates surrounding it, and its consistently high level of sophistication also makes it valuable to scholars already engaged in these debates.

In Part II, I first describe the important contributions made by and in The Challenge of Originalism. In particular, The Challenge of Originalism showcases originalism’s sophistication and broad appeal. Then, in Part III, I suggest two important and unresolved challenges to originalism: (1) fully explaining the nature and scope of constitutional construction; and (2) describing what role, if any, nonoriginalist precedent retains in originalism. I end, in Part IV, by suggesting that the essays exemplify the chief reason for originalism’s continuing and broad-based allure — the reason it presents a challenge — the Constitution’s writtenness.

Number of Pages in PDF File: 16

Keywords: originalism, precedent, construction

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Date posted: June 13, 2013 ; Last revised: August 22, 2013

Suggested Citation

Strang, Lee J., The Challenge of, and Challenges to, Originalism (August 9, 2013). The Challenge of Originalism: Theories of Constitutional Interpretation, (Grant Huscroft & Bradley W. Miller, eds.). Cambridge, Cambridge University Press. 2011. PP. IX, 305. Available at SSRN: http://ssrn.com/abstract=2278473 or http://dx.doi.org/10.2139/ssrn.2278473

Contact Information

Lee J. Strang (Contact Author)
University of Toledo College of Law ( email )
2801 W. Bancroft Street
Toledo, OH 43606
United States
419-530-2877 (Phone)
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