Forty Years of Originalism

The primary drivers of the effort to consider how originalism applies outside of the judiciary have been public officials, a rarity in the development of constitutional theory. The reemergence of a vigorous brand of constitutional conservatism has been widely commented on, from National Review to the New York Times. The Tea Party movement no doubt has had much to do with this, and the unprecedented assertions of federal power during the Obama administration have likewise contributed to a constitutional backlash. Senator Lee’s speech to the Federalist Society is by far the most articulate version of legislative originalism provided by a public official, but the principles he espoused are shared by a growing faction within the conservative movement. There is reason to think that the rise of lawmakers who take constitutional interpretation seriously will continue, and originalism will have to confront the theoretical implications of this development in American constitutionalism.

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