"Originalism in Crisis: The Movement Towards Indeterminate Originalism" ( http://hq.ssrn.com/Journals/RedirectClick.cfm?url=http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1613065&partid=47512&did=79242&eid=102923993 )
JOSE JOEL ALICEA ( http://hq.ssrn.com/Journals/RedirectClick.cfm?url=http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1487481&partid=47512&did=79242&eid=102923993 ), Princeton University Email: [email protected] I argue that the theories of Randy Barnett, Jack Balkin, and Lawrence Solum represent a fundamental rejection of what originalism has been through much of its history and what it ought to be if it is to make a meaningful contribution to legal thought. The fact that originalists have by and large welcomed these three theorists into the originalism tent is therefore deeply troubling because the meaning of the word “originalism” has been stretched beyond recognition. There is now a crisis of indeterminacy within originalist scholarship. In this essay, I will attempt to recover the core concepts that comprise a sound originalist theory in order to reestablish the perimeter of originalism. I will argue that Barnett, Balkin, and Solum constitute a separate scholarly movement, what I call “post-originalism.” The paper has obvious implications for originalist theory, but it is equally important for nonoriginalists who require a clear conception of what originalism is in order to meaningfully engage its proponents in scholarly discourse. At its heart, then, the paper is an effort to reintroduce theoretical boundaries so that scholars do not talk past one another and so that originalism can continue to have influence in American law and politics. ***************************************************************************************** Professor Joseph Olson, J.D., LL.M. o- 651-523-2142 Hamline University School of Law (MS-D2037) f- 651-523-2236 St. Paul, MN 55113-1235 c- 612-865-7956 [email protected] http://law.hamline.edu/node/784
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