Law Commons^™

Originalism As Popular Constitutionalism?: Theoretical Possibilities And Practical Differences, Lee Strang

Lee J Strang

The common perception is that originalism and popular constitutionalism are incompatible. Supporting this perception is the widely-shared opinion that most advocates for popular constitutionalism are liberal while most originalists are conservative-libertarian. Not only is this the perception, it has a basis in reality. Looking at the names of leading originalists and popular constitutionalists reveals that there is significant overlap between originalism and conservatism-libertarianism, and between popular constitutionalism and liberalism.

In this Article, I argue that the common perception that originalism and popular constitutionalism are incompatible is mistaken. Instead, I show that there is no uniquely correct answer to the question …

Originalism As Popular Constitutionalism?: It Depends, Lee J. Strang

Lee J Strang

In this Article, I accomplish two goals: first, I describe the rise of popular constitutionalism as a movement in the legal academy along with its basic tenets; and second, I demonstrate that, given the diversity of originalist scholarship, originalism’s relationship to popular constitutionalism depends on the version of originalism one adopts. In the heart of Originalism as Popular Constitutionalism?, I describe five axes upon which originalism pivots toward or away from popular constitutionalism. My claim is that the nuances of contemporary originalist scholarship—characterized by these five axes—make it impossible to definitively describe the relationship between originalism and popular constitutionalism.