Joe the Ploughman Reads the Constitution, or, The Poverty of Public Meaning Originalism

A couple of decades ago, one might have thought that its death knell had sounded when the Supreme Court nomination of Robert Bork failed in the Senate. Although one wondered exactly what kind of originalism Justice Bork might have performed in practice, he was regarded as the theory's leading a...

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Bibliographic Details
Published inThe San Diego law review Vol. 48; no. 2; p. 575
Main Author Rakove, Jack N
Format Journal Article
LanguageEnglish
Published San Diego University of San Diego, School of Law 01.04.2011
Subjects
Constitutional law
Judges & magistrates
Nominations
Poverty
Theory
United States > US
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Summary:A couple of decades ago, one might have thought that its death knell had sounded when the Supreme Court nomination of Robert Bork failed in the Senate. Although one wondered exactly what kind of originalism Justice Bork might have performed in practice, he was regarded as the theory's leading academic spokesman, and the defeat of his nomination might have served as a fatal blow to the cause. Within a few years, however, Justice Antonin Scalia published his lecture Originalism: The Lesser Evil, signaling that the cause remained alive and well. Although Justice Scalia's views of the practice of originalism have also evolved -- and in ways that embarrass originalism's leading academic theorists -- his endorsement offered a more sophisticated defense of the theory than had appeared, for example, in Attorney General Edwin Meese's public remarks on the subject. Like any theory of textual interpretation, originalism has been subject to an array of refinements and criticisms, as well as elaborations of methodology.
ISSN:0036-4037