The Legal Turn in Originalism: A Discussion

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