Originalism: Lessons from Things that Go Without Saying

36 Pages Posted: 10 Nov 2008

Date Written: November 6, 2008

Abstract

After setting the originalism "stage" and discussion of some of its tribulations, the article turns to the problem of constitutional silences. These come in many shadings, and the article concentrates on three that illustrate different sorts of problems: 1) the failure of the Guarantee Clause to provide a more precise definition of a "republican form of government"; 2) the deafening silence about any role for political parties in the nation's politics and governance; and 3) the absence of guidance about "discretion" to be exercised by presidential elections, which surfaces these days as the problem of the "faithless elector," one who votes in the electoral college contrary to pre-election commitment. These help illustrate how scant are the resources originalism will often bring to the enterprise of constitutional interpretation. The article is an adaptation of the 2008 Nathaniel L. Nathanson Memorial Lecture at the University of San Diego Law School.

Keywords: originalism, republican form of government, political parties, presidential electors, faithless electors

JEL Classification: K19

Suggested Citation

Bennett, Robert, Originalism: Lessons from Things that Go Without Saying (November 6, 2008). San Diego Law Review, Vol. 45, 2008, Northwestern Public Law Research Paper No. 08-39, Available at SSRN: https://ssrn.com/abstract=1296809

Robert Bennett (Contact Author)

Northwestern University Law School ( email )

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Chicago, IL 60611
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312-503-2035 (Fax)

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