Document Type
Article
Abstract
This article takes the reader on a guided tour of contemporary originalist constitutional theory. Most Americans believe that they already know everything they need to know about constitutional originalism. But in many cases, they are mistaken. Contemporary originalists do not believe that we should ask, "What would James Madison do?" Instead, the mainstream of contemporary originalism aims to recover the original public meaning of the constitutional text. Conservatives and libertarians are sure that originalism is a necessary corrective to the liberal excesses of the Warren Court. Progressives have an almost unshakeable belief that originalism is a right-wing ideology that seeks to legitimize conservative outcomes by invoking the prestige of the Founding Fathers. But in fact, the original public meaning of the constitutional text is a mixed bag--leading to many results that would be welcome by conservatives, but others that might be appealing to liberals or progressives. Even sophisticated lawyers and judges may believe that the justifications for originalism can only appeal to conservatives, but, in fact, the case for originalism, rooted in the rule of law and the value of legitimacy, can appeal to Americans with a wide range of political beliefs.
Recommended Citation
Lawrence B. Solum, Surprising Originalism: The Regula Lecture, 9 ConLawNOW 235 (2018)