Originalism Is Not Enough

L’originalismo non è sufficiente

Abstract

Abstract: L’originalismo non è sufficiente – The main argument Solum poses in favor of originalism is that adopting this interpretive method prevents judges from enforcing their personal values on the public. Although this paper shares Solum’s fear of juristocracy, it argues that originalism is insufficient to address this danger, and particularly when applied outside the United States, for two main reasons. The first reason is that the effectiveness of the originalist method is reduced in these countries because their structures of constitutional proceeding differ from the United States’ one. The second is that there is a growing tendency throughout the rest of the world to push interpretation to the sidelines, as the text is no longer viewed as the source of authority and legitimacy for judicial review. Whoever thinks a democratic state needs a constitution, and yet, seeks to prevent the court from taking over the constitution, cannot settle for adopting originalism as the sole shield.

Keywords: Originalism; Comparative constitutional interpretation; Comparative adjudication; Types of scrutiny