Originalism and the Fourteenth Amendment
127 Pages Posted: 16 Jul 2009 Last revised: 21 Jul 2009
Date Written: July 16, 2009
In recent years, constitutional scholars have deployed originalist arguments both to attack and to defend the vast twentieth-century expansion of constitutional civil rights under the Fourteenth Amendment. Remarkably, few of these scholars have attempted a coherent justification of originalism itself. The radically different results that these scholars have reached highlight the indeterminacy of the historical record, which does not permit satisfactory answers to the crucial questions of modern equal protection and due process jurisprudence. The article concludes that the currently dominant common-law approach to constitutional adjudication provides far broader and more determinate protection than originalism for individual rights and democratic institutions.
Keywords: Constitutional Law, Fourteenth Amendment, Originalism, Equal Protection, Due Process, Incorporation Doctrine
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