Sunday, November 28, 2021

Why do (Some) Originalists Hate America?

Andrew Koppelman

Imagine a regime whose fundamental law is only to be found in ancient archives.  Their mysterious contents take years to unearth, layer by layer.  With new discoveries, bodies of established law are unexpectedly invalidated and discarded.  Others, previously rejected, spring back into life as the scholars revise earlier conclusions.  The operations of government are in constant confusion.  This state of affairs is likely to persist indefinitely.

That doesn’t sound attractive, does it?  But that is where a prominent strand of modern originalist constitutional theory would lead us.  An essay I just published in the Arizona Law Review is a critique of originalist methodology.  But the deepest flaw in this program is not its methodological errors, but its weird political ideal.

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