Rebooting Originalism

A number of constitutional scholars have been trying to “reboot” originalism by addressing previous criticisms of the theory—for example, shifting focus from original intent to original public meaning—and an-nouncing the result to be a “new originalism,” despite a failure to ad-dress many serious objections to the “old” originalism. In this article, the author provides a critique of the new originalism and an examination of the existing alternative theories of constitutional interpretation. Ra-ther than “nonoriginalism,” these alternatives are traditional or conven-tional constitutional interpretation, which features a variety of forms, modes, or methods.Following his discussion of alternatives to originalism, the author argues that an overlooked and serious concern with originalism is its lack of his-toricism, its dependence on historical evidence without acknowledging the historical context of that evidence. Understanding American constitutionalism requires an appreciation of changing contexts, something originalism has difficulty acknowledging.In response to this failing, the author offers an alternative termed “devel-opmental theory.” Although developmental theory is not a method of constitutional interpretation, it does have implications for how those methods, especially historical interpretation, are carried out. Unlike originalism, developmental theory is capable of explaining and justifying the persistence in the federal courts of alternative legitimate forms of constitutional interpretation and the reality and legitimacy of informal constitutional change.

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