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08/31/2018

Charles Zug on Carson Holloway on Originalism
Michael Ramsey

At Liberty Law Blog, Charles Zug (doctoral candidate, University of Texas, Austin): Toward a More Perfect Originalism: A Reply to Carson Holloway.  From the introduction: 

Brett Kavanaugh’s recent nomination to the Supreme Court has sparked renewed interest in the alternatives of “originalism” and “the living constitution”—what some conservatives are calling “A Battle of Two Constitutions.” Though it was written several months before Kavanaugh’s nomination, Carson Holloway’s eloquent and thought-provoking essay, “In Defense of Originalism” (published in Public Discourse April 3, 2018) constitutes a timely addition to this debate. Holloway’s particular defense of originalism bases that doctrine on the twin notions of “original intent” and “original public meaning.” While sound in many respects, Holloway’s defense contains several historical and theoretical weaknesses which defenders of living constitutionalism are likely to exploit—weaknesses which make an improved version of originalism more necessary than ever.

...

Broadly speaking, Holloway advises conservatives to double down, and turn to the thought of the founders—a sound injunction....

Less sound, however, is the particular version of originalism which Holloway seeks to vindicate. According to Holloway, “[o]riginalists hold that the Constitution should have a fixed meaning, that it ought to be interpreted according to the mind of those who wrote and ratified it.”

And in conclusion:

Holloway has done constitutional theory and American political thought a real service in further exploring the nuances of Constitutional originalism. Nevertheless, his particular defense of originalism—which relies on argumentative consensus rather than argumentative merit, and privileges founding intentions over founding arguments—leaves room for further improvement.