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88 Tex. L. Rev. 1 (2009-2010)
On the Origins of Originalism

handle is hein.journals/tlr88 and id is 3 raw text is: Texas Law Review Volume 88, Issue 1, November 2009 Articles On the Origins of Originalism Jamal Greene* For all its proponents' claims of its necessity as a means of constraining judges, originalism is remarkably unpopular outside the United States. Recom- mended responses to judicial activism in other countries more typically take the form of minimalism or textualism. This Article considers why. Ifocus particular attention on the political and constitutional histories of Canada and Australia, nations that, like the United States, have well-established traditions of judicial enforcement of a written constitution, and that share with the United States a common law adjudicative norm, but whose political and legal cultures less readily assimilate judicial restraint to constitutional historicism. I offer six hypotheses as to the influences that sensitize our own culture to such historicism: the canonizing influence of time; the revolutionary character of American sovereignty; the rights revolution of the Warren and Burger Courts; the politicization of the judicial-nomination process in the United States; accommodation of an assimilative, as against a pluralist, ethos; and a relatively evangelical religious culture. These six hypotheses suggest, among other things, that originalist argument in the United States is a form of ethical argument and that the domestic debate over originalism should be understood in ethical terms. I. Introduction ......................................................................................... 2 II. O ur O riginalism .................................................................................. 8 III. The Lives of Others: The Cases of Canada and Australia ................ 18 A. Canada's Charter Evolution ......................................................... 20 1. Judicial Review Under the BNA Act ........................................ 20 2. A Tree Grows in Canada: Judicial Review Under the Charter .... 28 * Associate Professor of Law, Columbia Law School. For helpful conversation, generous feedback, and thoughtful suggestions, I wish to thank Vincent Blasi, Samuel Bray, Laurence Claus, Charles Fried, Suzanne Goldberg, Jeffrey Goldsworthy, Kent Greenawalt, Ruth Greenwood, Philip Hamburger, Paul Horwitz, Grant Huscroft, Vicki Jackson, Gillian Metzger, Bradley Miller, Henry Monaghan, Elora Mukherjee, Richard Primus, Peter Schuck, Neil Siegel, Peter Strauss, Wade Wright, and participants at the New York City Junior Faculty Colloquium and workshops at Columbia Law School, Loyola University New Orleans College of Law, and the SMU Dedman School of Law.

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