Academic

Download of the Week

By Lawrence Solum

The Download of the Week is Originalism's Living Constitutionalism by Thomas Colby and Peter J. Smith. Here is the abstract:

Originalists have consistently argued that originalism - which (they claim) accords to the Constitution fixed and determinate meaning - is the only constitutional theory that treats the Constitution as a form of law, respects the properly limited judicial role in a democratic society, and constrains judges' ability to impose their own views under the guise of constitutional interpretation. We endeavor to undermine these claims to exclusive coherence and legitimacy by demonstrating that, despite the suggestion of originalist rhetoric, originalism is not a single, coherent, unified theory of constitutional interpretation, but is rather a disparate collection of distinct constitutional theories that share little more than a misleading reliance on a common label. Originalists generally are in agreement only on certain very broad precepts that serve as the fundamental underlying principles of constitutional interpretation: specifically, that the writtenness of the Constitution necessitates a fixed constitutional meaning, and that courts that see themselves as empowered to give the Constitution some avowedly different meaning are behaving contrary to law. Originalists have been able to achieve agreement on these broad underlying principles, but they have often viewed as unduly narrow and mistaken the understanding held by the original originalists - the framers of originalism, if you will¿as to how those principles must be put into action. And originalists disagree so profoundly amongst themselves about how to effectuate those underlying principles that they have articulated - and continue to articulate - a wide array of strikingly disparate, and mutually exclusive, constitutional theories. In this regard, we argue, originalism is a jurisprudential theory with its own living constitutionalism.

For my extensive comments and additional excerpts, just scroll down.  Highly recommended.

Full post as published by Legal Theory Blog on February 16, 2008 (boomark / email).