Thursday, April 12, 2018

Mulligan on Diverse Originalism

Christina Mulligan, Brooklyn Law School, has posted Diverse Originalism, which is forthcoming in the University of Pennsylvania Journal of Constitutional Law:
Originalism has a difficult relationship with race and gender. People of color and white women were largely absent from the process of drafting and ratifying the Constitution. Today, self-described originalists are overwhelmingly white men. In light of these realities, can originalism solve its “race and gender” problems while continuing to be originalist? This Article argues that originalists can take several actions today to address originalism’s race and gender problems, including debiasing present-day interpretation, looking to historical sources authored by people of color and white women, and severing originalism and the Constitution’s text from their historical associations with racism and sexism. Taking these steps will not only make originalism more inclusive, but also help originalists become better at accessing the original meaning of the Constitution.
H/t: Legal Theory Blog

1 comment:

Shag from Brookline said...

Regarding this from the abstract:

" ... looking to historical sources authored by people of color and white women, ..."

Back when, how much authoring was done by people of color and white women? Probably more by the latter than the former.