Continental Originalism: Keeping Our Republic

27 Pages Posted: 23 Dec 2020

Date Written: December 11, 2020

Abstract

This Article accepts that originalism is a powerful and appealing method of constitutional interpretation that continues to gain much attention. That said, to the extent we have to reckon with originalism, the idea of union preservation as the lodestar for the originalist’s constitutional interpretation can make originalism a little more faithful to the historical moment it holds sacred and thus add some legitimacy to judicial opinions at a time when we need it most. Through a close reading of the Federalist Papers—and the historical moment from which they are born—this Article builds a theory of “continental originalism” with union preservation as the originalist’s lodestar. Because if we accept that originalism is not going anywhere anytime soon and we also accept its basic principles, we must then also take seriously the historical point—clearly revealed by the Federalist Papers—that baked into the original meaning, original intent, or the ratifiers’ understanding is this idea of securing the nation’s survival and preserving our union. Plainly put, to keep our republic, we can start by “think[ing] continentally.”

Keywords: Originalism, law and history, Federalist Papers, Hamilton

JEL Classification: None

Suggested Citation

Paxton-Turner, Ashlee, Continental Originalism: Keeping Our Republic (December 11, 2020). Available at SSRN: https://ssrn.com/abstract=3747280 or http://dx.doi.org/10.2139/ssrn.3747280

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