Why Do (Some) Originalists Hate America?

53 Pages Posted: 30 Mar 2020 Last revised: 22 Mar 2021

Date Written: March 27, 2020

Abstract

Imagine a regime whose fundamental law is only to be found in ancient archives. Their mysterious contents take years to unearth, layer by layer. With new discoveries, bodies of established law are unexpectedly invalidated and discarded. Others, previously rejected, spring back into life as the scholars revise earlier conclusions. The operations of government are in constant confusion. This state of affairs is likely to persist indefinitely.

That doesn’t sound attractive, does it? But that is where a prominent strand of modern originalist constitutional theory would lead us. This essay is a critique of originalist methodology. But the deepest flaw in this program is not its methodological errors, but its weird political ideal.

Keywords: Originalism, Constitutional Law, William Baude, Stephen Sachs, Corpus linguistics

JEL Classification: K10, K30

Suggested Citation

Koppelman, Andrew M., Why Do (Some) Originalists Hate America? (March 27, 2020). Northwestern Law & Econ Research Paper No. 20-02, Northwestern Public Law Research Paper No. 20-04, Arizona Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3562356 or http://dx.doi.org/10.2139/ssrn.3562356

Andrew M. Koppelman (Contact Author)

Northwestern University School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-8431 (Phone)

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