Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2009 On the Origins of Originalism Jamal Greene Columbia Law School,
[email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Comparative and Foreign Law Commons, and the Constitutional Law Commons Recommended Citation Jamal Greene, On the Origins of Originalism, 88 TEX. L. REV. 1 (2009). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/673 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact
[email protected]. Texas Law Review Volume 88, Issue 1, November 2009 Articles On the Origins of Originalism Jamal Greene* For all its proponents' claims of its necessity as a means of constraining judges, originalism is remarkably unpopular outside the United States. Recom- mended responses to judicial activism in other countries more typically take the form of minimalism or textualism. This Article considers why. Ifocus particular attention on the political and constitutional histories of Canada and Australia, nations that, like the United States, have well-established traditions of judicial enforcement of a written constitution, and that share with the United States a common law adjudicative norm, but whose political and legal cultures less readily assimilate judicial restraint to constitutional historicism. I offer six hypotheses as to the influences that sensitize our own culture to such historicism: the canonizing influence of time; the revolutionary character of American sovereignty; the rights revolution of the Warren and Burger Courts; the politicization of the judicial-nomination process in the United States; accommodation of an assimilative, as against a pluralist, ethos; and a relatively evangelical religious culture.