The Challenge of Originalism: Theories of Constitutional Interpretation

Abstract

Originalism is a force to be reckoned with in American constitutional theory. From its origins as a monolithic theory of constitutional interpretation, originalism has developed into a sophisticated family of theories about how to interpret and reason with a constitution. Contemporary originalists have harnessed the resources of linguistic, moral, and political philosophy in responding to critics. Recent work is characterized by methodological concerns about how to identify the meaning of constitutional texts as well as the development of normative arguments for fidelity to them.

The essays in this volume are contributed by leading constitutional scholars and theorists not only from the United States but also Australia, Canada, and the UK. The essays define, defend, and critique various schools of originalist thought, assessing the problems and the prospects for originalist theory in constitutional law. Although originalism is generally understood as an American phenomenon, the papers in this volume are theoretical works that have something to say about constitutional law not only in the United States but also internationally.

Keywords: Constitutional theory, judicial review, originalism, living constitutionalism, comparative constitutional law, bills of rights, moral reasoning

JEL Classification: K10, K19, K30, K39