As Mike Ramsey previously noted, Gary Lawson has a new piece commenting on the new books by Jack Balkin and David Strauss.
Gary begins the essay in a characteristically interesting way:
In 2011, originalism is a hot topic to discuss and a cool position to advocate.
Either portion of that statement would have been nearly inconceivable two decades ago
when I started in academia. Originalism at that time was something of an intellectual
backwater, with a very limited set of adherents and an even more limited set of critics
who were willing to take originalist ideas seriously.
If one goes back a few more years to when Gary and I were at Yale together, the unpopularity and oddity of originalism was even more evident. But with the Originalism Renaissance, things have changed.
In the paper, Gary argues against the necessity for a category of construction within originalist adjudication. As Gary notes, many originalists argue that interpretation can take you only so far and therefore a separate category of construction, which is not controlled by the Constitution's original meaning, is necessary. Gary suggests that interpretation can do all the work and construction might not be necessary.
I have also argued that construction may not be necessary in this piece on Original Methods Originalism, although for a different reason than Gary offers.
Posted at 2:21 PM