The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Thursday morning, law professor and blogger Lawrence Solum will be testifying at the Gorsuch hearings about originalism. His testimony is available online and it is a succinct (12 double-spaced pages) and yet quite careful explanation of the core idea of originalism. I will resist the temptation to post the whole thing, but here is the introduction:
The next part refutes four myths about originalism:
- Myth Number One: Originalists Try to Channel James Madison
- Myth Number Two: Originalists Cannot Apply the Constitution to New Circumstances
- Myth Number Three: Originalism Would Require that Brown v. Board be Overruled
- Myth Number Four: Originalism is Inconsistent with Precedent
Solum then turns to originalism's consistency with modern jurisprudence, the normative arguments for it, and responds to some objections, such as the "dead hand" and the problem of "law office history."
These may be obvious points to readers familiar with the originalism debates, but I frequently see ignorance of them by folks who really should know better.