George Washington Law Review, Vol. 90, 2022
Virginia Public Law and Legal Theory Research Paper No. 2021-38
58 Pages Posted: 26 Aug 2021 Last revised: 23 Aug 2022
Date Written: August 26, 2021
The burgeoning debates about constitutional interpretation show no signs of abating. With surprisingly few exceptions, however, those debates involve a contrast between textualism understood as some form of originalism, on the one hand, and various varieties of less textually focused living constitutionalism, on the other. In conflating textualism with originalism, however, the existing debates ignore the possibility of a non-originalist textualism – a textualism tethered not to original intent and not to original public meaning but, instead, to contemporary public meaning – public meaning now. This article explains the plausibility of just such an “unoriginal” textualism and argues that it might serve the guidance and constraint functions of a constitution better than any of the alternatives now on offer.
Keywords: constitutional interpretation; textualism; originalism; legal interpretation; statutory interpretation
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