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12/11/2017

David Singh Grewal & Jedediah S. Purdy: The Original Theory of Originalism
Michael Ramsey

David Singh Grewal (Yale Law School) and Jedediah S. Purdy (Duke University School of Law) have posted The Original Theory of Originalism (Yale Law Journal, Vol. 127, No. 1, 2018) on SSRN (reviewing Richard Tucker, The Sleeping Sovereign: The Invention of Modern Democracy (Cambridge University Press 2016)).  Here is the abstract:

The U.S. Constitution embodies a conception of democratic sovereignty that has been substantially forgotten and obscured in today’s commentary. Recovering this original idea of constitution-making shows that today’s originalism is, ironically, unfaithful to its origins in an idea of self-rule that prized both the initial ratification of fundamental law and the political community’s ongoing power to reaffirm or change it. This does not mean, however, that living constitutionalism better fits the original conception of democratic self-rule. Rather, because the Constitution itself makes amendment practically impossible, it all but shuts down the very form of democratic sovereignty that authorizes it. No interpretive strategy succeeds in overcoming the dilemma of a constitution that at once embodies and prohibits democratic sovereignty.