The Immorality of Originalism

56 Pages Posted: 6 Jan 2022 Last revised: 20 Jan 2022

Date Written: December 12, 2021

Abstract

The central claim of this essay is that in interpreting the U.S. Constitution, it is immoral to choose original intent over social welfare, broadly conceived. Once this argument is laid out and defended on its own terms, I support the central claim with a variety of arguments, including the defective process pursuant to which the Constitution was enacted, the deeply flawed substantive content of the Constitution, the incongruity of fidelity to the views of a generation of revolutionaries, the current virtual imperviousness of the Constitution to amendment, the failure of the Constitution to resolve fundamental questions concerning the allocation of power within the government, which leads to dependence on the un-democratic Supreme Court to resolve important and controversial social issues and finally originalism’s tendency to force otherwise honorable people to lie or obfuscate about the reasons for their official decisions.

Keywords: constitutional interpretation, originalism

JEL Classification: K19

Suggested Citation

Beermann, Jack Michael, The Immorality of Originalism (December 12, 2021). Available at SSRN: https://ssrn.com/abstract=3983598 or http://dx.doi.org/10.2139/ssrn.3983598

Jack Michael Beermann (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-2577 (Phone)
617-353-3110 (Fax)

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