Fordham Law School
In tracing the arc of originalism from the old originalism to the new, I observe a shift from an exclusionary outlook to an inclusionary outlook, reflected in new originalists’ proclamations that “we are all originalists now.” As my title suggests, I am going to bring out the inclusiveness of the new originalism and ponder its implications. The new originalists have emphasized two developments: (1) the movement from a focus on “intention of the framers” to “original public meaning” and (2) the articulation of and emphasis on the distinction between interpretation and construction. My main points are two. First, the inclusiveness of the new originalism (for example, that it countenances construction and “multiple modalities” in constitutional law, not just interpretation as the old originalists understood it) shows that it will require the very judgments that proponents of the moral reading have argued are necessary in constitutional interpretation and construction (and that old originalists asserted were illegitimate). Indeed, this inclusiveness points toward the possibility of reconciliation between certain forms of the new originalism and the moral reading that I defend. But second, I shall sketch a cautionary tale about the movement within originalism from “intention of the framers” to “original public meaning.” For example, in Justice Scalia’s hands, resort to original public meaning over and against the purposes of constitutional amendment as expressed by the framers and ratifiers in their language and debates may blunt the very possibility of constitutional transformation through amendment.
James E. Fleming,
The Inclusiveness of the New Originalism
Fordham Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/155