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Full-Text Articles in Law
Biblical Literalism And Constitutional Originalism, Peter J. Smith, Robert W. Tuttle
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
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 Sacrifice Of The New Originalism, Thomas Colby
The Sacrifice Of The New Originalism, Thomas Colby
GW Law Faculty Publications & Other Works
This Article argues that Originalism has achieved its intellectual respectability only at the necessary expense of its ballyhooed promise of constraint. The Article recounts the theoretical advances of the New Originalism and argues that the New Originalism is substantially more defensible than was the Old one and is much better positioned to answer the scholarly critiques that demolished its predecessor. The Article further explains that these benefits have, however, come at the cost of judicial constraint. By its very nature - and to a far greater degree than its proponents have tended to recognize - the New Originalism is a …