Politics all the way down: originalism as rhetoric

Politica, fino in fondo: l’originalismo come retorica

Abstract

Abstract: Politica, fino in fondo: l’originalismo come retorica – This paper argues that, contrary to Professor Solum's statement, originalism is an interpretive technique that is political, and cannot be adopted or applied in isolation from political considerations. However, the paper suggests "political" judging is not totally unrestrained, and is not as dangerous as Solum fears; all judging is restrained by the common conventions and suppositions of the legal community. The paper concludes with the suggestion that originalism is a rhetoric, one that attempts - despite its claims to transcend politics - to persuade people to adopt one judicial politics over others.

Keywords: Originalism; Living constitutionalism; Rhetoric; Anti-formalism; Judicial politics.