Diverse Originalism

69 Pages Posted: 9 Apr 2018  

Christina Mulligan

Brooklyn Law School

Date Written: April 2, 2018

Abstract

Originalism has a difficult relationship with race and gender. People of color and white women were largely absent from the process of drafting and ratifying the Constitution. Today, self-described originalists are overwhelmingly white men. In light of these realities, can originalism solve its “race and gender” problems while continuing to be originalist? This Article argues that originalists can take several actions today to address originalism’s race and gender problems, including debiasing present-day interpretation, looking to historical sources authored by people of color and white women, and severing originalism and the Constitution’s text from their historical associations with racism and sexism. Taking these steps will not only make originalism more inclusive, but also help originalists become better at accessing the original meaning of the Constitution.

Keywords: constitution, originalism, constitutional interpretation

Suggested Citation

Mulligan, Christina, Diverse Originalism (April 2, 2018). University of Pennsylvania Journal of Constitutional Law, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3154870

Christina Mulligan (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

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