WHAT's the POINT of ORIGINALISM? As of Late, a Remarkable Array of Constitutional Theorists Have Declared Themselves Originali
WHAT’S THE POINT OF ORIGINALISM? DONALD L. DRAKEMAN* I. EMBRACING ORIGINALISM As of late, a remarkable array of constitutional theorists have declared themselves originalists of one sort or another,1 and no one is quite sure why.2 Or, perhaps more accurately, everyone is sure, but they all disagree with each other. For some, the originalism command springs directly from the text itself: it is a written Constitution, and the original meaning of the text itself is the law of the land;3 for others, such as Justice Scalia, it is the best (and perhaps only) way to restrain judges from reading * Ph.D., Princeton University, 1988; J.D., Columbia Law School, 1979; A.B., Dartmouth College, 1975. Visiting Fellow, Program on Church, State & Society, Notre Dame Law School; and Fellow in Health Management, University of Cam- bridge. I would like to thank Joel Alicea, David Campbell, Marc DeGirolami, Richard Ekins, Matthew Franck, Mark Movsesian, Phillip Muñoz, Keith Whitting- ton, Brad Wilson, the fellows of the James Madison Program in American Ideas and Institutions at Princeton University, and the Notre Dame Law School Faculty Colloquium for very helpful comments, and Michael Breidenbach for excellent research assistance. The usual disclaimer applies. 1. See generally Thomas B. Colby & Peter J. Smith, Living Originalism, 59 DUKE L.J. 239 (2009); see also Jeffrey Shulman, The Siren Song of History: Originalism and the Religion Clauses, 27 J.L. & RELIGION 163 (2011) (book review). For a discussion of modern originalism, see Joel Alicea, Forty Years of Originalism, 173 POL’Y REV. 69 (2012) and JACK M.
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