Originalism: Less to the Picture than Meets the Eye?

Originalismo: meno di quanto possa alla apparenza sembrare? –

  • Thomas B. Colby

Abstract

Abstract: Originalismo: meno di quanto possa alla apparenza sembrare? – Originalism is thriving in America today.  And yet there is, in an important sense, less to the picture than meets the eye.  Even if originalist judges were always to employ originalism with the highest degree of consistency and rigor--which they do not do--they would still not be constrained from imposing their own values on the nation.  Simply put, today’s sophisticated originalism is not particularly constraining at all.  The very changes that academics have made to the theory of originalism in recent years in order to shore it up against criticism and make it more intellectually sophisticated and defensible, also rob the theory of what used to be its very raison d’etre—its claim to be able to constrain judges and prevent them from imposing their own values on the nation.  Originalism does not avoid the problem of judges allowing their personal views to affect their constitutional decisions, thereby undermining democratic self-rule.  It simply cloaks that process in false (even if well-meaning) claims of historical providence


Keywords: Originalism; Constitutional law; Constitutional interpretation; Constitutional theory; Supreme Court of the United States.

Published
Oct 12, 2017
How to Cite
B. COLBY, Thomas. Originalism: Less to the Picture than Meets the Eye?. DPCE Online, [S.l.], v. 31, n. 3, oct. 2017. ISSN 2037-6677. Available at: <http://www.dpceonline.it/index.php/dpceonline/article/view/440>. Date accessed: 09 aug. 2022.
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Casi e questioni