Scott Lemieux on The Essential Meaningless of the “Original Intent/Original Meaning” Distinction.
Gordon S. Wood reviews The Whites of Their Eyes: The Tea Party’s Revolution and the Battle Over American History by Jill Lepore.
Although Wood seems to have the same critical view of (and I would say misunderstanding of) originalism as other historians, he seems to respect it more. He writes:
Originalism may not be good history, but it is a philosophy of legal and constitutional interpretation that has engaged some of the best minds in the country’s law schools over the past three decades or so. It is basic to the mission of the Federalist Society (an important organization of conservative and libertarian jurists, lawyers, law professors, and students), and at times it may have as many as four adherents on the Supreme Court. Justice Antonin Scalia’s book A Matter of Interpretation: Federal Courts and the Law (1997), which staked out an originalist position on statutory interpretation, was taken seriously enough to generate critical responses from Ronald Dworkin, Lawrence H. Tribe, Mary Ann Glendon, and myself, all published in Scalia’s book along with his replies. In other words, originalism, controversial as it may be, is a significant enough doctrine of judicial interpretation that even its most passionate opponents would not write it off as cavalierly as Lepore does in this book.
Posted at 12:18 AM