Georgetown University Law Center
Is it possible for a constitutional theorist to give due regard to original meaning in constitutional interpretation without being an originalist? Narrow originalists, such as Robert H. Bork and Justice Antonin Scalia, have asserted that it is not.' On their view, it is hypocritical for anyone who is not a narrow originalist to make recourse to original meaning-a clear case of the devil quoting scripture. Their view is bogus. Nevertheless, constitutional theorists who are not narrow originalists have not paid sufficient attention to how arguments based on original meaning function in constitutional law. One of the many virtues of Michael C. Dorf's excellent article 2 is that it shows that one can take original meaning seriously without being a narrow originalist. Doff argues persuasively that the Supreme Court itself, when it makes arguments based on original meaning, is not typically being originalist in the conventional, narrow sense. This is a significant argument and an important contribution to constitutional theory.
James E. Fleming,
Original Meaning Without Originalism
Georgetown Law Journal
Available at: https://scholarship.law.bu.edu/faculty_scholarship/2776