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12/28/2020

Ashlee Paxton-Turner: Continental Originalism
Michael Ramsey

Ashlee Paxton-Turner (Independent) has posted Continental Originalism: Keeping Our Republic (27 pages) on SSRN.  Here is the abstract:

This Article accepts that originalism is a powerful and appealing method of constitutional interpretation that continues to gain much attention. That said, to the extent we have to reckon with originalism, the idea of union preservation as the lodestar for the originalist’s constitutional interpretation can make originalism a little more faithful to the historical moment it holds sacred and thus add some legitimacy to judicial opinions at a time when we need it most. Through a close reading of the Federalist Papers—and the historical moment from which they are born—this Article builds a theory of “continental originalism” with union preservation as the originalist’s lodestar. Because if we accept that originalism is not going anywhere anytime soon and we also accept its basic principles, we must then also take seriously the historical point—clearly revealed by the Federalist Papers—that baked into the original meaning, original intent, or the ratifiers’ understanding is this idea of securing the nation’s survival and preserving our union. Plainly put, to keep our republic, we can start by “think[ing] continentally.”