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Hastings Law Journal, Issue 62.3 (February 2011)

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5 Responses

  1. Brett Bellmore says:

    From Ronald D. Rotunda’s “How Different Are Originalism and Non-Originalism?”, the very first line:

    “Modern originalism arose as a reaction to the Supreme Court’s expansive interpretations of the Constitution’s rights-granting provisions.”

    The very first line, and you can already tell Rotunda is hostile to originalism…

    “All of this naturally leads one to question how different originalism and non-originalism really are.”

    Actually, it leads one to question how different the “new originalism” and living constitutionalism are. My answer to that question is, not different at all, except that the self-professed living constitutionalists are a bit more honest as to what they’re up to.

    It’s not so much that there’s a growing rift within originalism, as that there’s a growing faction of living constitutionalists who perversely insist on calling themselves originalists. Perhaps because they hope to take the name away from actual originalists…

  2. A.J. Sutter says:

    Brett, when you’re on the Court, please show us how it’s done.

  3. Brett Bellmore says:

    Feh, I’m not the only one who doubts that these “new new originalists” have any real claim to being originalists at all. Even Rotunda admits that they’re hard to distinguish from living constitutionalists, aside from what they call themselves. Well, there’s a reason for that, it’s just not the one Rotunda proclaims.

  4. Lawrence Cunningham says:

    The Originalism piece is by Peter Smith, my colleague at GW, not Ronald Rotunda, who is an expert in professional responsibility, not constitutional theory.

  5. Brett Bellmore says:

    My apologies for that error, I was confused by the format above.

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