The Challenge of, and Challenges to, Originalism

Article excerpt

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. …