Law Commons^™

Biblical Literalism And Constitutional Originalism, Peter J. Smith, Robert W. Tuttle

GW Law Faculty Publications & Other Works

Critics of constitutional originalism have often described originalists as “fundamentalists” or “literalists” as a way of discrediting originalism. This comparison has obvious rhetorical force because it tends implicitly to taint originalism with guilt by association, given views in the academy of Protestant fundamentalism. But originalism’s critics are not the only ones who appear to have noticed the similarities between the two interpretive approaches; when they have entered the arena of policy and judicial politics, proponents of biblical literalism have generally embraced originalism as the correct approach to constitutional interpretation.

It is not surprising that both critics of constitutional originalism and …

How Different Are Originalism And Non-Originalism?, Peter J. Smith

GW Law Faculty Publications & Other Works

The academic debate about originalism remains vibrant and dynamic, and the theoretical case for originalism is more nuanced now than ever before. So nuanced, in fact, that - at least as described by several prominent originalists - originalism is no longer very different, either in theory or in application, from non-originalism. These self-described “new originalists” have begun to contend that the objective original meaning of many of the Constitution’s provisions - including the broad rights-granting provisions in the Fourteenth Amendment - should be ascertained at a very high level of generality. They have also urged recognition of a distinction between …

The Federal Marriage Amendment And The False Promise Of Originalism, Thomas Colby

GW Law Faculty Publications & Other Works

This Article approaches the originalism debate from a new angle - through the lens of the recently defeated Federal Marriage Amendment. There was profound and very public disagreement about the meaning of the FMA - in particular about the effect that it would have had on civil unions. The inescapable conclusion is that there was no original public meaning of the FMA with respect to the civil unions question. This suggests that often the problem with originalism is not just that the original public meaning of centuries-old provisions of the Constitution is hard to find (especially by judges untrained in …

Revitalizing The Forgotten Uniformity Constraint On The Commerce Power, Thomas Colby

GW Law Faculty Publications & Other Works

Employing a straightforward textual reading of the Commerce Clause, which, unlike various other constitutional clauses, does not expressly mandate uniform regulation, the Supreme Court has recently declared that Congress is free to enact commercial regulations that apply in some states, but not in others, or that explicitly treat some states differently than others. This Article seeks to call that conclusion into question, and in the course of doing so, to explore the proper roles of history and text in constitutional decisionmaking.

From a historical perspective, the desire for uniformity was both the precipitating factor in the creation of the federal …