Originalism as Faith
16 Pages Posted: 22 Mar 2016 Last revised: 19 May 2016
Date Written: March 21, 2016
This essay discusses the role (or lack thereof) originalism plays in constitutional interpretation and critiques a recent article in the Columbia Law Review by University of Chicago Law Professor Will Baude titled "Inclusive Originalism."
The thesis of the essay is that Baude's "inclusive originalism" specifically and "New Originalism" more broadly, either inaccurately describe constitutional decision-making by mislabeling non-originalist decisions as originalist, or define originalism in a way that is indistinguishable from non-originalist methods. Either way, Professor Baude and other New Originalists vastly overstate the importance of original meaning to constitutional law. I suggest at the end of this piece that they do so largely to avoid the realist critique that values, not text or history, drive Supreme Court decisions.
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