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Ricochet members love to debate the meaning of the Constitution. Many of us are what might loosely be called originalist — we should interpret the Constitution based on the words of the text as they were understood by those who ratified the document.
I’ve posted a piece that tries to explain why originalism might be the best form of constitutional interpretation. The occasion was a book review, coming out in Michigan Law Review, with Robert Delahunty of a book by Akhil Amar, my teacher at Yale Law School: America’s Unwritten Constitution. We argue that originalists would have difficulty acceping Amar’s defense of unwritten constitutional rights, even though they would have agreed with his methods in his earlier great book, America’s Constitution: A Biography.
In short, we argue that originalism started out as a way to constrain judicial activism, but has grown into a lively field that has won many more adherents that you would think. We set out a history of originalism. But then we argue that originalism makes sense from the perspective of the Founders because the North and South, big states and small states, had to commit to each other that they would not try to rewrite the constitutional deal, even when one side or the other might grow in power over time. What do people think of this international politics approach to our Founding document?Published in