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02/12/2011

Comparative Originalism
Mike Rappaport

David Fontana (George Washington University Law School) has posted Comparative Originalism (Texas Law Review See Also, Vol. 88, p. 189, 2010) on SSRN. Here is the abstract:

Jamal Greene has written an important paper examining originalism in other countries. This short response argues that comparing the United States with Canada and Australia (the countries Professor Greene mostly examines) involves comparing quite different countries, because the Canadian and Australian constitutions reorganized preexisting institutions, whereas the United States had more of a nation-creating, revolutionary constitution. Other countries that arose out of more revolutionary events, such as certain post-colonial African and Latin American nations, have also tended to feature originalist arguments. When the nation predates the creation of a constitution, key cultural and political understandings also predate the constitution, thereby diminishing the importance of originalism.