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On the Origins of Originalism

80 Pages Posted: 12 Mar 2009 Last revised: 18 Aug 2009

Jamal Greene

Columbia University - Law School

Date Written: August 16, 2009

Abstract

For all its proponents' claims of its necessity as a means of constraining judges, originalism is remarkably unpopular outside the United States. Recommended responses to judicial activism in other countries more typically take the form of minimalism or textualism. This Article considers why. I focus particular attention on the political and constitutional histories of Canada and Australia, nations that, like the United States, have well-established traditions of judicial enforcement of a written constitution, and that share with the United States a common-law adjudicative norm, but whose judicial cultures less readily assimilate judicial restraint to constitutional historicism. I offer six hypotheses as to the influences that sensitize our popular and judicial culture to such historicism: the canonizing influence of time; the revolutionary character of American sovereignty; the rights revolution of the Warren and Burger Courts; the politicization of the judicial nomination process in the United States; the accommodation of an assimilative, as against a pluralist, ethos; and a relatively evangelical religious culture. These six hypotheses suggest, among other things, that originalist argument in the United States is a form of ethical argument, and that the domestic debate over originalism should be understood in ethical terms.

Keywords: originalism, Canada, Australia

Suggested Citation

Greene, Jamal, On the Origins of Originalism (August 16, 2009). Texas Law Review, Vol. 88; Columbia Public Law Research Paper No. 09-201. Available at SSRN: https://ssrn.com/abstract=1357541

Jamal Greene (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States

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