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02/15/2015

Calvin TerBeek: Originalism's Obituary
Michael Ramsey

At his Balls and Strikes blog, Calvin TerBeek writes Originalism's Obituary.  From the introduction:

Originalism is facing an existential crisis.  Some of its leading proponents might not know it — might not want to admit it — but viewed from the outside it seems clear that the edifice of originalism, old and new, is crumbling.  To use Thomas Kuhn’s The Structure of Scientific Revolutions as a helpful analytical jumping-off point: the new methods of thinking about constitutional interpretation (i.e., original public meaning) were developed because the old methods (e.g., original intentions) were not up to the task of solving the “dilemma” of interpretation (neutral and objective criteria for judging), but instead have now thrown the “state of knowledge” (about the “best” theory of constitutional interpretation) into flux or crisis as views once deemed heretical or unforeseen (progressive results flowing from an originalist approach) have opened the field.  However, unlike Kuhn’s model for scientific knowledge, there will be no new originalist paradigm that emerges from this crisis.  That is, no one version of originalism will triumph to return the state of knowledge back to “normal” (originalist) theorizing. The originalist project has finally collapsed in on itself.

(One might see Kurt Lash's essay at Liberty Law Blog, noted yesterday, as something of a response).