Originalism at Home and Abroad
71 Pages Posted: 16 Mar 2014 Last revised: 17 Aug 2015
Date Written: March 14, 2014
Originalism is typically thought to be a uniquely American preoccupation. This Article challenges the conventional view that originalism enjoys little support outside the United States by showing that the story of originalism — both at home and abroad — is more nuanced than has been appreciated. I examine how originalism has developed in two unexplored contexts — Malaysia and Singapore — to show that originalism not only thrives outside the United States but that it takes on distinct variations reflecting the cultural, historical, and political conditions of individual nations. The Article argues that whether originalism thrives, and the form that it takes, is context driven and culturally contingent.
The account that this Article provides of how originalism is practiced in the world beyond the United States tests familiar assumptions in the mainstream debates over originalism. First, it shows that existing accounts of the origins of originalism are incomplete and questions the claim that originalism inevitably follows from judicial interpretation of a written constitution. Second, the experiences of countries elsewhere demonstrate that originalism is not necessarily — or even typically — associated with constraining judges. Originalists frequently claim that originalism is uniquely capable of limiting judicial discretion. Yet judges in various contexts employ originalism in support of expansive constitutional interpretation and to empower courts against the political branches. Third, this analysis sheds light on why certain nations — the United States included — are attracted to particular originalist approaches, such as original intent or original meaning.
Keywords: originalism, comparative constitutional law, Malaysia, Singapore
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