"There is really only one group in American society that remains largely immune to the lure of originalism: historians." So writes Saul Cornell (Fordham University) in a recent essay on the "new originalist" theory of constitutional interpretation: its provenance, its applications, and, in his view, its errors.Here's a taste:
THERE IS something deeply ironic about new originalism that its advocates have missed because they lack an understanding of Founding-era history. Focusing on the public meaning of the Constitution, the chief insight of new originalism, is really not new at all. Such an approach was championed by the Anti-Federalist opponents of the Constitution more than two hundred years ago. Following new originalist methodology would not lead to a restoration of the original meaning of the Constitution, but it would give us an Anti-Federalist Constitution that never existed. This is an odd result, given that the Constitution was largely written by Federalists and ratified by state conventions dominated by Federalist majorities, not Anti-Federalist minorities.The full essay is here, at Dissent.
Hat tip: RBB
