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Volokh Conspiracy

Larry Solum on "Originalism in Constitutional Time"


My Georgetown Law colleague Lawrence Solum has an interesting post today called, Originalism in Constitutional Time, in which he discusses "the idea that constitutional possibilities are sometimes open and sometimes closed, given the configuration of politics and the jurisprudential gestalt at any given point in constitutional time." After a lengthy recapitulation of the modern intellectual debate between "originalism" and "living constitutionalism," he concludes:

And so, we arrive at a critical moment in constitutional time. Only a few months ago, many were trumpeting a decisive end to originalism. Originalism was about to be "off the wall" not "on the table." Instead, originalism is once again the focus of public and academic attention-the theory to beat. But this moment in constitutional time is not a moment of triumph for originalism. Instead, it is a moment of open constitutional possibilities-the future shimmers, with glimpses of alternative constitutional futures coming in and out of focus. In some constitutional futures, the constitutional gestalt shifts and originalism becomes the dominant mode of constitutional discourse, fundamentally altering our conception of the relationship of constitutional law and politics. In others, living constitutionalism regains the ascendency and the downward spiral of politicization that has infected the judicial selection process and even the Supreme Court itself continues apace.

You should read the narrative that precedes this conclusion.

My take on this is different than Larry's. I think that, if the successful appointment of the first self-professed originalist (at the time of his nomination) to the Supreme Court in thirty years-since Robert Bork's failed nomination in 1987-does not count as "a moment of triumph for originalism," then there are never any moments of triumph in the continual ebb and flow of human events. While I agree that yesterday did not constitute any kind of ultimate victory for originalism, it certainly was a momentary triumph. Much had to happen to make yesterday's moment of triumph in the Senate "constitutionally possible." But, among other things, this possibility was the result of much labor and learning-not the least by Larry Solum.