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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