Tuesday, March 24, 2009

Greene on the Origins of Originalism

On the Origins of Originalism is a new paper by Jamal Greene, Columbia University Law School. Here's the abstract:
For all its proponents' claims of its necessity as a means of constraining judges, originalism is remarkably unpopular outside the United States. Recommended responses to judicial activism in other countries more typically take the form of minimalism or textualism. This Article considers why. I focus particular attention on the political and constitutional histories of Canada and Australia, nations that, like the United States, have well-established traditions of judicial enforcement of a written constitution, and that share with the United States a common-law background adjudicative norm, but whose judicial cultures less readily assimilate judicial restraint to historicist claims. I offer six hypotheses as to the influences that sensitize our popular and judicial culture to such claims: the canonizing influence of time; the revolutionary character of American sovereignty; the rights revolution of the Warren and Burger Courts; the politicization of the judicial nomination process in the United States; the accommodation of an assimilative, as against a pluralist, ethos; and a relatively evangelical religious culture. These six hypotheses suggest, among other things, that originalist argument in the United States is a form of ethical argument, and that the domestic debate over originalism should be understood in ethical terms.


Shag from Brookline said...

Greene has another article titled "Selling Originalism" in the Georgetown Law Journal, Vol. 97:657, that I'm about a third through and so far it is a great read. There have been a series of articles on originalism recently that use the Heller decision as a base to demonstrate that originalism may be losing its touch, with perhaps a third or fourth wave of originalism in the making. Perhaps as more such articles appear, it may turn out that ironically Heller may end up shooting holes in originalism, at least the current versions. And might newer versions of originalism be oxymoronic?

This new paper by Greene may be an extension of the theme in his paper I am currently reading. He does have a good writing style.

Shag from Brookline said...

I finished Prof. Greene's "Selling Originalism" and was quite impressed. Then I started on his "On the Origins of Originalsim." Part II was somewhat repetitive of the earlier article. When I started on Part III dealing with Canada and Australia, I was at first put off as I did not immediately understand why it was important to look at these countries on the matter of originalism. But then Greene painted his stories, concluding with comparisons between the U.S., Canada and Australia regarding originalism. Greene's writing style, his storytelling, is amazing. Greene may be part of a new wave of challengers to originalism post-Heller. He is a young man and I suspect Pres. Obama knows or him, or soon will. I have visions that Greene may be considered for nomination to the Supreme Court, perhaps as a counter to Justice Thomas. (I understand he clerked for Justice Stevens.)

I wonder how legal historians may react or respond to Greene's articles. It's not clear to me that legal historians are necessarily originalists.