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01/05/2013

Michael Dorf on Old and New Originalism
Michael Ramsey

At Dorf on Law, Mike Dorf:  Is New Originalism Really Less Determinate Than Old Originalism? A Thought Experiment.

From the conclusion:

Whether--from the perspective of an originalist--new originalism is a step forward or backwards with respect to determinacy thus depends on what is partly an empirical question: In the run of cases likely to reach the courts, are we more likely to see issues as to which there was a consensus on original expected applications or original public meaning that is sufficiently precise that there will be consensus about their contemporary application? I don't know the answer to that question. I also realize that originalists care about other things besides determinacy.  Still, to the extent that determinacy is part of the equation, this strikes me as the sort of question that originalists might want to investigate. Because I'm not an originalist (old or new), I certainly don't want to investigate this question, although I'd be interested in looking at what others turned up.