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Growth of originalism

Growth of originalism

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Published by Chad Whitehead
scholarly article about originalism and Constitution
scholarly article about originalism and Constitution

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Categories:Types, Business/Law
Published by: Chad Whitehead on Jan 14, 2013
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HARD CASES: AMERICA
S LAW SCHOOLS
The Growth of Originalism
Robert H. Bork 
Published online: 26 April 2011
#
The Author(s) 2011. This article is published with open access at Springerlink.com
The latest episode in the long-running struggle for control of theConstitution, and the political power that goes with it, is playing out in thefederal courts in California. The contending philosophies are originalism,which holds that the Constitution should be read as it was originallyunderstood by the framers and ratifiers, and the congeries of cultural and political theories proposed by academics and progressives, but not contemplated by the founders.The immediate ground of the controversy today is California
s Proposition 8, by which nearly 53 percent of the state
s voters rejected gay marriage. Althoughmost people would think that the very essence of law is that courts should carryouttheunderstandingofthosewhovotedforalaw,theamazingfactisthat,untilrecently, most law schools regarded that view as primitive and not worthdiscussing. On the Yale faculty of law in the 1960s and 1970s, I was alone inadheringtoanoriginalistoutlook.Avisitingprofessor,nothimselfanoriginalist,suggested in the faculty lounge that my argument was worth rebuttal. He wastold, however, that originalism was passé and not worth discussing.Some of these professors were honest in this view, but others helddisguised leftist views, both politically and culturally. Obviously, if there isno firm discipline in constitutional law, no result can be ruled out. The virtueof originalism is not that it delivers firm answers on every topic but that it 
Acad. Quest. (2011) 24:135
 – 
136DOI 10.1007/s12129-011-9223-1
Robert H. Bor
is distinguished fellow at the Hudson Institute, 1015 15th Street, NW, 6th Floor,Washington, DC 20005; nas@nas.org.
 
rules out the most outrageous decisions. Originalists could never have arrivedat the result in
Roe v. Wade
or justified the drive for same-sex marriage.It is difficult to say whether originalism or one of the alternatives iswinning the debate. The answer to such questions is inevitably subjective, but it is clear that originalism has been gaining adherents and may be close todominance in constitutional scholarship. One reason is the phenomenalsuccess of the Federalist Society, primarily an organization of students withchapters in most law schools. Just as the non-originalists are said to be anuneasy alliance between nihilism and left-wing philosophy, so the federaliststend to be an alliance between Libertarians and conservatives. Alsoinfluential is the presence on the Supreme Court of four justices whose primary outlook is originalist.In the end, however, the ultimate fate of originalism will depend upon thecharacter of judges and professors. They have a constant temptation to yieldto the allure of power to do good as they see the good rather than as the political branches to which we have entrusted the care of democracy see it.
Open Access
This article is distributed under the terms of the Creative Commons Attribution Noncommercial License which permits any noncommercial use, distribution, and reproduction in anymedium, provided the original author(s) and source are credited.136 Bor

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