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2 Geo. J.L. & Pub. Pol'y 599 (2004)
The New Originalism

handle is hein.journals/geojlap2 and id is 605 raw text is: The New Originalism

KEITH E. WHITTINGTON*
No version of originalism is going to be completely new. As a method of
constitutional interpretation in the United States, originalism has a long history.
It has been prominently advocated from the very first debates over constitu-
tional meaning. At various points in American history, originalism was not a
terribly self-conscious theory of constitutional interpretation, in part because it
was largely unchallenged as an important component of any viable approach to
understanding constitutional meaning. Originalism, in its modern, self-
conscious form, emerged only after traditional approaches had been challenged
and, to some degree, displaced.'
At least initially, let me offer a fairly basic definition of originalism. Original-
ism regards the discoverable meaning of the Constitution at the time of its initial
adoption as authoritative for purposes of constitutional interpretation in the
present. A number of variations on this basic theory are possible and have been
advocated over time. The new originalism offers a different variation on this
basic theory than the old originalism. The old originalism flourished from the
1960s through the mid-1980s. The new originalism has flourished since the
early 1990s. I should note that my focus here is not on the actions and opinions
of judges. Constitutional arguments drawing on evidence from the founding
period are one of several forms of argument that can be found in judicial
opinions, and judges often make use of that evidence whenever they find it
helpful to advancing their position. But I have no particular illusions about the
consistency or sophistication of constitutional theorizing on the bench, and
judicial rhetoric and behavior is not my primary concern. My focus here is on
developments within academic constitutional theory.
I. THE OLD ORIGINALISM
The old originalism came to greatest prominence in the 1980s with its
explicit embrace by Attorney General Edwin Meese and the nomination of one
of its most notable exponents, Robert Bork, to the U.S. Supreme Court in 1987.
However, the political and academic debate over originalism was well advanced
by then. As the Warren Court's rights revolution became increasingly controver-
sial in the late 1960s, critics of the Court frequently recurred to original intent to
ground their disagreement with the Court's innovative rulings. The tension was
evident in an exchange between Senator Sam Ervin and Thurgood Marshall
during the latter's confirmation hearings in 1967. Unsatisfied with Marshall's
* Associate Professor of Politics, Princeton University. A version of this article was first presented at
the 2002 AALS/APSA Conference on Constitutional Law.
1. For deep background, see generally Howard Gillman, The Collapse of Constitutional Originalism
and the Rise of the Notion of the Living Constitution in the Course of American State-Building, II
STUD. AM. POL. DEV. 191 (1997).

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