Talking Originalism

Abstract

What is old is new. Twenty-five years ago, commentators were declaring originalism dead. Yet today the law reviews are positively awash with it. In light of this resurgence, the chief arguments for and against originalism are ripe for critical re-examination. "Talking Originalism" provides such an examination. For the most part, the arguments it presents are not new. But until now, they have been scattered through a voluminous literature, spanning several decades. One purpose of this essay is simply to collect them in a single place. A second purpose is to examine them afresh, which for long-running debates like this one, is worth doing at least once a generation. The result is to refocus attention on three central factors that have received too little discussion in the recent literature: the extreme age of most constitutional provisions; the extreme difficulty of constitutional amendment; and the need to justify legal arrangements - including constitutional arrangements - by reference to consequences. Many subsidiary issues are cast in a new light along the way.

Keywords: Originalism, Constitutional Theory, Interpretive Theory, Constitutional Law, Constitution, Nonoriginalism, Pragmatism