December 7, 2015

J. A. Jeremy Telman on Originalism

D. A. Jeremy Telman, Valparaiso University Law School, is publishing Originalism: A Thing Worth Doing . . . in volume 42 of Ohio Northern University Law Review (2016). Here is the abstract.
Originalism in constitutional interpretation continues to grow in its reach, its sophistication, its practical applicability and its popular support. Although originalism first developed in the 1960s as a doctrine of judicial modesty, originalist judges are now far more confident in their ability to discern the Constitution’s original meaning and thus willing to strike down legislative enactments inconsistent with that meaning. Two aphorisms by the leading practitioners of originalism sum up originalism’s journey. Justice Scalia, writing in the 1980s, conceded that originalism was merely “the lesser evil” and consoled himself with the Chestertonian dictum that “a thing worth doing is worth doing badly.” Justice Thomas places fewer limitations on his own belief in originalist method and adopts as his motto “any job worth doing is worth doing right.” The challenge for contemporary originalism is that it is not the sort of thing that G.K. Chesterton thought was worth doing badly, but it also may be the sort of thing that is very difficult to do right.
Download the article from SSRN at the link.

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