Monday, December 14, 2009
Professor Samuel Issacharoff (New York University School of Law) has posted "Pragmatic Originalism?" on SSRN. It will be published in the NYU Journal of Law & Liberty.
The abstract states:
As the influence of and debates over originalist constitutional arguments has spread, so has some uncertainty of the exact sources of originalist authority. The maturation of the debates has exposed some dissensus over the intent of the Framers or Ratifiers, the plain meaning, the conventional contemporary understanding, and the actions of the founding generation.
This essay, part of a symposium on the jurisprudence of Justice Thomas, takes no position on the contending sources of originalist authority. Rather it uses the appearance of distinct original sources, as set out in the contribution to this symposium of Professor Gregory Maggs, to examine the potential impact on the force of originalist claims when subsequent judicial applications have to choose among rival potential sources of original intent, particularly when the distrinct strains of originalism might point toward different outcomes.
The presence of multiple originalist sources might be an embarrassment were originalism to be defended as a narrow interpretive device that relieves courts of the need to make contested interpretations of constitutional authority. Were the turn to originalism defended on pragmatic or instrumental grounds as a limiting strategy for judicial review, as this Essay proposes, the anxiety over multiple authorities would be lessened if not eliminated. Although originalism is not often defended on pragmatic grounds, this Essay suggests that this may be its strongest claim.