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04/25/2019

Thomas Colby: Originalism and Structural Argument
Michael Rmasey

Thomas Colby (George Washington University Law School) has posted Originalism and Structural Argument (113 Northwestern University Law Review 1297 (2019)) (39 pages) on SSRN.  Here is the abstract:

The "new originalism" is all about the text of the Constitution. Originalists insist that the whole point of originalism is to respect and follow the original meaning of the text, and that originalism derives its legitimacy from its unwavering focus on the text alone as the sole basis of higher law. And yet, many leading Supreme Court decisions in matters of great importance to conservatives—in opinions authored and joined by originalist judges, and often praised by originalist scholars—are seemingly not grounded in the constitutional text at all. They rest instead on abstract structural argument: on freestanding principles of federalism and separation of powers in lieu of the original meaning of any particular provision of the Constitution. This Essay demonstrates and examines the underexplored tension between original meaning textualism and structural argument.

This is a very important paper by one of originalism's most insightful critics.  A central point is that originalism is not necessarily the same as textualism (a point I've also made with respect to Justice Scalia's judicial decisionmaking in this article, which Professor Colby cites).  Originalists (especially originalist judges) are sometimes criticized for being nonoriginalist when they use structural reasoning -- but structural reasoning is not necessarily nonoriginalist; it's just non-textualist.