What originalists supposedly look to

Volokh, Eugene VOLOKH at law.ucla.edu
Fri Apr 16 09:11:47 PDT 2010


               Before we make generalizations about what originalists supposedly look to, and whether they ignore the Civil War Amendments, we might want to look closely at what actual originalists do.  For instance, many originalists - both scholars and some activists - have been looking very closely at the Fourteenth Amendment as to the most recent Fourteenth Amendment controversy, which is whether the right to keep and bear arms should be incorporated against the states.  Likewise, many originalist scholars (including conservative ones) have spilled much ink over the Fourteenth Amendment.

I'm sure there are plenty of originalist scholars who focus on the Framing era because that's what they find especially interesting.  Likewise, I'm sure that some people reasonably think that as to particular issues, the 1787-1791 original meaning is more relevant than the 1866-1870 original meaning, since those issues strike them as outside the scope of the Civil War Amendments.  (I take it that much of the arguments that people in the Tea Party movement are making fall into that category.)

Likewise, plenty of laypeople who vaguely sympathize with originalism but just don't know any better - much as, for instance, there are plenty of laypeople who vaguely sympathize with the "living Constitution" model but just haven't thought carefully about what it means in various areas, such as the right to keep and bear arms.  But none of this tells us about what "Originalists" generally do or think.

Eugene
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