Enduring originalism

If our law requires originalism in constitutional interpretation, then that would be a good reason to be an originalist. This insight animates what many have begun to call the "positive turn" in originalism. Defenses of originalism in this vein are "positive" in that they are bas...

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Bibliographic Details
Published in:The Georgetown law journal 2016-11, Vol.105 (1), p.97-158
Main Authors: Pojanowski, Jeffrey A, Walsh, Kevin C
Format: Article
Language:English
Subjects:
Communities
CONSTITUTIONAL LAW
Constitutions
Evaluation
Interpretation and construction
Law
Natural law
Originality
Positive law
PRECEDENT
RULE OF LAW
Social aspects
Stare decisis
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Summary:If our law requires originalism in constitutional interpretation, then that would be a good reason to be an originalist. This insight animates what many have begun to call the "positive turn" in originalism. Defenses of originalism in this vein are "positive" in that they are based on the status of the Constitution, and constitutional law, as positive law. This approach shifts focus away from abstract conceptual or normative arguments about interpretation and focuses instead on how we actually understand and apply the Constitution as law. On these grounds, originalism rests on a factual claim about the content of our law: that we regard the framers' law, and any other further lawful changes, as our law today. If we do not, originalism is not the law and perhaps should be abandoned in favor of what is.
ISSN:0016-8092