Bad originalism
From Wikipedia, the free encyclopedia
Bad originalism refers to one or another kind of corruption of Originalism, and may well be a form of judicial activism.
Bad originalism can occur if:
- A legitimate originalist inquiry reaches flawed conclusions (e.g. evidence that would have been vital was unknown at the time)
- An originalist inquiry is manipulated to reach preferred results (e.g. evidence that would have been vital was available but was ignored)
However, note that Originalism is a theory of interpretation, not of construction. Two originalists can examine the same materials and come out on different sides of the case (see, e.g. Granholm v. Heald; McIntyre v. Ohio Elections Comm'n), without either of them having slipped into bad originalism. Even once the original meaning (or, alternatively, the original intent) has been discerned, there remains the question of how broad or narrow a construction is placed upon that meaning. That having been said, while this is not per se bad originalism, it can become bad originalism once more if, having determined the original meaning / understanding / intent, a construction is placed upon that meaning which the text simply will not withstand.
The term "bad originalism" was probably coined by Prof. Jack Balkin.
[edit] See also
[edit] External links
- Jack Balkin, Bad originalism
- Jack Balkin, Scalia blowing smoke
- Ed Brayton, Balkin on "Bad Originalism"
- JustOneMinute, The NY Times finds a codebreaker
- Ed Whelan, Boiling the Frog (reviewing Cass Sunstein's Radicals in Robes)
