Friday, December 4, 2015

Teleman on Originalism as "Inescapable and Doomed"

D. A. Jeremy Telman, Valparaiso University Law School, has posted Originalism: A Thing Worth Doing . . ., which is forthcoming in volume 42 of the Ohio North University Law Review:
Originalism in constitutional interpretation continues to grow in its reach, its sophistication, its practical applicability and its popular support. Originally conceived as a doctrine of judicial modesty, originalist judges are now far more confident in their ability to discern the Constitution's original meaning and to strike down legislative enactments inconsistent with that meaning. Two aphorisms by the leading practitioners of originalism sum up originalism's journey. Justice Scalia, writing in the 1980s, conceded that originalism was merely "the lesser evil" and consoled himself with the Chestertonian dictum that "a thing worth doing is worth doing badly." Justice Thomas places fewer limitations on his own belief in originalist method and adopts as his motto "anything worth doing is worth doing right." The challenge for contemporary originalism is that it is not the sort of thing that G.K. Chesterton thought was worth doing badly, but it also may be the sort of thing that is very difficult to do right.