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07/07/2011

Grant Huscroft and Bradley Miller: The Challenge of Originalism
Michael Ramsey

Grant Huscroft (University of Western Ontario - Faculty of Law) and Bradley W. Miller (University of Western Ontario - Faculty of Law) have posted The Challenge of Originalism: Theories of Constitutional Interpretation (Cambridge University Press, 2011) on SSRN.  This collection of essays features contributions by an array of prominent scholars, including two from the University of San Diego's Originalism Center, Larry Alexander and Steve Smith.

Here is the abstract:

Originalism is a force to be reckoned with in American constitutional theory. From its origins as a monolithic theory of constitutional interpretation, originalism has developed into a sophisticated family of theories about how to interpret and reason with a constitution. Contemporary originalists have harnessed the resources of linguistic, moral, and political philosophy in responding to critics. Recent work is characterized by methodological concerns about how to identify the meaning of constitutional texts as well as the development of normative arguments for fidelity to them.

The essays in this volume are contributed by leading constitutional scholars and theorists not only from the United States but also Australia, Canada, and the UK. The essays define, defend, and critique various schools of originalist thought, assessing the problems and the prospects for originalist theory in constitutional law. Although originalism is generally understood as an American phenomenon, the papers in this volume are theoretical works that have something to say about constitutional law not only in the United States but also internationally.

Table of Contents

Grant Huscroft and Bradley W. Miller, "Introduction"

Part I Exposition and Defence

Lawrence B. Solum, “What is Originalism? The Evolution of Contemporary Originalist Theory”
Jeffrey Goldsworthy, “The Case for Originalism”
Keith E. Whittington, “On Pluralism within Originalism”

Part II Interpretation and Intention

Larry Alexander, “Simple-Minded Originalism”
Stanley Fish, “The Intentionalist Thesis Once More”
Bradley W. Miller, “Origin Myth: The Persons Case, The Living Tree, and the New Originalism”

Part III Originalism and Constitutional Settlement

Grégoire C. N. Webber, “Originalism’s Constitution”
James Allan, “The Curious Concept of the ‘Living Tree (Or Non-Locked-In) Constitution”
Grant Huscroft, “Vagueness, Finiteness, and the Limits of Interpretation and Construction”

Part IV Challenges and Critiques

Steven D. Smith, “That Old-Time Originalism”
Mitchell N. Berman, “Reflective Equilibrium and Constitutional Method”
Brian H. Bix, “Constitutions, Originalism, and Meaning”