The Legal Turn in Originalism: A Discussion

22 Pages Posted: 26 Jun 2018 Last revised: 9 Jul 2018

John O. McGinnis

Northwestern University - Pritzker School of Law

Michael B. Rappaport

University of San Diego School of Law

Ilya Shapiro

Cato Institute

Kevin C. Walsh

University of Richmond - School of Law

Ilan Wurman

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Date Written: 2018

Abstract

These five essays, which were originally published on the Library of Law and Liberty website, explore several themes involving the Legal Turn in Originlism – the trend toward using legal methods either to interpret or construct the Constitution. John McGinnis and Michael Rappaport’s initial essay argues that there has been a legal turn in recent originalist scholarship, exemplified by originalist scholars such as William Baude and Stephen Sachs, Jeffrey Pojanowski and Kevin Walsh, Randy Barnett and Evan Bernick, Jack Balkin, and by McGinnis and Rappaport’s own scholarship. Ilya Shapiro reacts to McGinnis and Rappaport’s initial essay, claiming that the Legal Turn is not very controversial since all originalists agree with the idea of treating the Constitution as a legal text. Kevin Walsh then explores the idea of the legal turn as it is developed in his own approach (coauthored with Pojanowski). Finally, Ilan Wurman expresses skepticism that the legal meaning of the Constitution is as important as McGinnis and Rappaport believe. McGinnis and Rappaport conclude the exchange with a response to their critics.

Keywords: originalism, new originalism, old originalism, legal meaning, original methods originalism, constitutional law, constitutional interpretation, interpretation, jurisprudence

JEL Classification: K10

Suggested Citation

McGinnis, John O. and Rappaport, Michael B. and Shapiro, Ilya and Walsh, Kevin C. and Wurman, Ilan, The Legal Turn in Originalism: A Discussion (2018). San Diego Legal Studies Paper No. 18-350. Available at SSRN: https://ssrn.com/abstract=3201200

John McGinnis

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-3235 (Phone)

Michael B. Rappaport (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

Ilya Shapiro

Cato Institute ( email )

1000 Massachusetts Avenue, N.W.
Washington, DC 20001-5403
United States
202-218-4600 (Phone)
202-842-3490 (Fax)

HOME PAGE: http://www.cato.org/people/ilya-shapiro

Kevin C. Walsh

University of Richmond - School of Law ( email )

28 Westhampton Way
Richmond, VA 23173
United States

Ilan Wurman

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Box 877906
Tempe, AZ 85287-7906
United States

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