Please update your browser

You're using a version of Internet Explorer that isn't supported by Questia.
To get a better experience, go to one of these sites and get the latest
version of your preferred browser:

The Challenge of, and Challenges to, Originalism

By Strang, Lee J. | Constitutional Commentary, Summer 2013 | Go to article overview

The Challenge of, and Challenges to, Originalism


Strang, Lee J., Constitutional Commentary


THE CHALLENGE OF ORIGINALISM: THEORIES OF CONSTITUTIONAL INTERPRETATION. Grant Huscroft (1) & Bradley W. Miller (2) eds. Cambridge, Cambridge University Press. 2011. Pp. ix + 305. $99.00 (cloth).

I. INTRODUCTION

The Challenge of Originalism does many things well: it showcases the sophistication of current originalist scholarship; it displays the resonance that originalist arguments have with diverse and international audiences; and it reminds us that originalists are far from having won the debate. The Challenge of Originalism brings together some of the leading lights of originalist scholarship, and puts them in conversation with each other and with prominent critics.

The Challenge of Originalism also, as all collections must, leaves out some important topics. Most prominent is originalism's relationship to nonoriginalist precedent, a subject of significant scholarly interest over the past ten years. Also, The Challenge of Originalism introduces some of the key recent originalist moves, such as incorporating the concept of constitutional construction, without fully elucidating them.

The essays in The Challenge of Originalism are consistently nuanced and thought-provoking. The Challenge of Originalism includes introductory material to originalism and the debates surrounding it, and its consistently high level of sophistication also makes it valuable to scholars already engaged in these debates.

In Part II, I first describe the important contributions made by and in The Challenge of Originalism. In particular, The Challenge of Originalism showcases originalism's sophistication and broad appeal. Then, in Part III, I suggest two important and unresolved challenges to originalism: (1) fully explaining the nature and scope of constitutional construction; and (2) describing what role, if any, nonoriginalist precedent retains in originalism. I end, in Part IV, by suggesting that the essays exemplify the chief reason for originalism's continuing and broad-based allure--the reason it presents a challenge--the Constitution's writtenness.

II. THE CHALLENGE OF ORIGINALISM

A. ORIGINALISM'S SOPHISTICATION

The Challenge of Originalism is primarily composed of essays that--among other things they do well--exhibit originalism's increasing sophistication. The first three chapters present a description of originalism, its origin and current state (pp. 12-41, 70-86), along with a defense of originalism (pp. 42-69). Chapters four and five provide a window into the newly-reinvigorated original intent originalism position (pp. 87-119), and chapter six displays the potential impact of the adoption of original meaning originalism in the context of Canadian constitutional law (pp. 120-46). Chapters seven through nine exemplify the role that constitutional settlement plays and can play in justifications of originalism (pp. 147-222). Lastly, chapters ten through twelve contain critiques--some sympathetic and some not--of originalism, especially its original meaning version (pp. 223-99).

Both the originalists and their critics in The Challenge of Originalism powerfully deploy a wide variety of concepts, distinctions, and arguments. For this reason, The Challenge of Originalism is not solely for the newly initiated. (4) Lawrence Solum's essay, "What is Originalism? The Evolution of Contemporary Originalist Theory," is appropriately first in the collection because it provides a clear introduction to originalism's theoretical evolution over the past forty years (pp. 12-41). He first introduces readers to originalism's various incarnations: original intent, original understanding, original meaning, and original methods (pp. 16-26). Then, Solum describes the major intellectual moves made by (many) originalists to advance originalism: the distinction between original applications and original meaning; the distinction between constitutional interpretation and construction; and the fixation and contribution theses (pp.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Challenge of, and Challenges to, Originalism
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.