Wednesday, August 31, 2016

Christiansen on Originalism in the State Courts

Jeremy M. Christiansen has posted Originalism: The Primary Canon of State Constitutional Interpretation, which is forthcoming in the Georgetown Journal of Law & Public Policy:
Given the reach of federal constitutional law and the attention the topic garners in law reviews, law schools, and general popular discourse, a certain degree of federal-centricity is understandable in most scholarly discourse about originalism. Nevertheless, the near universal tendency of scholars to think only about the U.S. Constitution when debating originalism undermines claims by both proponents and opponents of originalism by failing to account for the massive body of originalist case law in state constitutional interpretation.

This article seeks to broaden the field of discussion about originalism by demonstrating that 38 of 50 state courts of last resort have consistently been invoking originalism, since as early as 1804. Indeed, not only have these courts expressly and consistently invoked originalism during this time period, but they also identified originalism as the primary canon of constitutional interpretation. In other words, for this super majority, originalism is supposed to be the goal of state constitutional interpretation. This is not to say that state courts are always originalist when interpreting their constitutions or that they always get a question of original meaning correct. Instead, the importance of this body of case law is for the broader debates about originalism in general. And although a full exploration of the impact of state constitutional originalism is beyond the scope of this article, there are important implications, potentially impacting topics from the traditional Bork-Scalia creation narrative of originalism, to more recent predictions about originalism’s impending demise, to assertions about originalism being partisan, to recent scholarship about originalism as law.
H/t: Legal Theory Blog