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Talking Originalism

Brigham Young University Law Review, Vol. 2009

Univ. of Wisconsin Legal Studies Research Paper No. 1096

26 Pages Posted: 26 Sep 2009  

Andrew Coan

University of Arizona, James E. Rogers College of Law

Date Written: September 24, 2009

Abstract

What is old is new. Twenty-five years ago, commentators were declaring originalism dead. Yet today the law reviews are positively awash with it. In light of this resurgence, the chief arguments for and against originalism are ripe for critical re-examination. "Talking Originalism" provides such an examination. For the most part, the arguments it presents are not new. But until now, they have been scattered through a voluminous literature, spanning several decades. One purpose of this essay is simply to collect them in a single place. A second purpose is to examine them afresh, which for long-running debates like this one, is worth doing at least once a generation. The result is to refocus attention on three central factors that have received too little discussion in the recent literature: the extreme age of most constitutional provisions; the extreme difficulty of constitutional amendment; and the need to justify legal arrangements - including constitutional arrangements - by reference to consequences. Many subsidiary issues are cast in a new light along the way.

Keywords: Originalism, Constitutional Theory, Interpretive Theory, Constitutional Law, Constitution, Nonoriginalism, Pragmatism

Suggested Citation

Coan, Andrew, Talking Originalism (September 24, 2009). Brigham Young University Law Review, Vol. 2009; Univ. of Wisconsin Legal Studies Research Paper No. 1096. Available at SSRN: https://ssrn.com/abstract=1478185

Andrew Coan (Contact Author)

University of Arizona, James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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