The Challenge Of, and Challenges To, Originalism

Book review: The challenge of originalism: Theories of constitutional interpretation. Grant Huscroft & Bradley W. Miller, eds. Cambridge, Cambridge University Press. 2011. Pp. ix + 305. Reviewed by Lee J. Strang

The Original Meaning of “religion” in the First Amendment: A Test Case of Originalism’s Utilization of Corpus Linguistics

Originalism is the theory of constitutional interpretation that identifies the constitutional text’s public meaning when it was ratified as its authoritative meaning. Corpus linguistics is the study of word-use regularities and patterns, primarily in written texts. In a prior article, I argued that originalists should utilize corpus linguistics to facilitate originalism’s capacity to accurately uncover this original meaning. However, my arguments there were theoretical; this Essay provides a “test case” of corpus linguistics’ capacity to increase originalism’s methodological accuracy. This Essay accomplishes three modest goals. First, it provides a practical example of the application of corpus linguistics to originalism. This affords a first-cut illustration of the extent to which corpus linguistics can make originalism’s methodology more rigorous. Second, this Essay utilizes the tools of corpus linguistics to provide additional evidence of the original meaning of “religion” in the First Amendment. Third, based on this experience, it describes some of the challenges originalist scholars will likely face employing corpus linguistics

Originalism and the Challenge of Change : Abduced-Principle Originalism and Other Mechanisms by Which Originalism Sufficiently Accommodates Changed Social Conditions

One of the most persistent criticisms of originalism-and also one of the most powerful-is that originalism is not a viable interpretative methodology because of the tremendous technological, social, cultural, religious, and moral change that has occurred since the Constitution\u27s original meaning was created. The Constitution\u27s original meaning arose in contexts so dramatically different from our own, the criticism goes, that a Constitution whose meaning was limited by those contexts would be unworkable in today\u27s world. This form of criticism of originalism - the challenge of changeis pervasive. In this Article, I argue that originalism has, within its analytical quiver, six tools that permit it to effectively surmount the challenge of change. These six tools are: (I) an originalism of principles (standards, and rules); (2) abduced-principle originalism; (3) indeterminate and underdeterminate original meaning; (4) Article I and state police power; (5) Article V; and (6) nonoriginalist precedent. I describe these mechanisms. One of the six tools that originalists have used, but which they have failed to articulate, is abduced-principle originalism. Abduced- principle originalism takes two forms. The first form is where an interpreter abduces a legal norm-a rule, standard, or principle-that fits the contemporary uses of the constitutional term or phrase and thereby makes explicit the coherent original meaning of the term or phrase that lay behind the uses. The second form is where an interpreter abduces a legal norm that fits the discrete practices that the Framers and Ratifiers understood the constitutional text in question to prohibit, require, or permit. Lastly, I show that originalism retains sufficient inflexibility to possess the necessary virtue of having critical bite

Originalism\u27s Promise, and Its Limits - Symposium: History and Meaning of the Constitution

At the same time, I believe, originalism’s promise remains. Originalism’s promise is three-fold. First, originalism promises that it can paint constitutional interpretation in the most normatively attractive light. Not ideal results. Instead—on balance and systemically—normatively more attractive results than its competitors. Second, originalism promises that constitutional interpretation can fit the key facets of our Constitution. These key facets include, for example, the Constitution’s writtenness and its particular origins, facets that originalism better fits than alternative methods of constitutional interpretation. Third, originalism promises that constitutional interpretation can respect judges’ capacities. Judges’ pivotal role necessitates that interpretative methodologies work with their capacities, which originalism does, better than nonoriginalism. In this Symposium Essay, I summarize originalism’s promise and limits. Part II succinctly explains originalism’s promise. Part III briefly describes originalism’s limits. Part IV then suggests that originalism’s limits contribute to its promise

The Meaning of Religion in the First Amendment

In this article, the author attempts to define the meaning of the word religion in the First Amendment of the United States Constitution. In defining religion , the author is mindful of the position taken by almost all constitutional scholars; the original meaning of the text is important. On the other hand, the article contends that the criteria, by which to judge the meaning of the text of the Constitution, is the meaning attributed to the text by the Ratifiers. The meaning of the word religion is not the subjective meaning attributed by individual Ratifiers, but rather the objectified meaning of the text as generally understood by all the Ratifiers

Originalism as Popular Constitutionalism: Theoretical Possibilities and Practical Differences

The article presents information on originalism as a popular constitutionalism. It includes information on popular constitutionalism as a movement in the American legal academy and informs about originalism\u27s relationship with popular constitutionalism that depends on the conception of originalism one adopts. It suggests various reasons for the liberal conservative divide between originalism and popular constitutionalism despite their theoretical compatibility