Jonathan Gienapp (Stanford University) has posted The Constitution and Historical Rupture (69 pages) on SSRN, Here is the abstract:
This essay is a response for a symposium on my book, Against Constitutional Originalism: A Historical Critique. It responds to criticisms made against it while further developing the book’s central themes.
It contends that the problem of historical rupture—that the eighteenth-century U.S. Constitution presupposed a very different way of thinking about constitutionalism and law than reigns today—is the most important problem implicated by the theory of constitutional originalism, and yet remains largely neglected. It further contends that were originalists to finally confront this problem, the theory could not survive that reckoning, not without abandoning its defining features.
RELATED, from the same author: Constitutionalism, Then and Now: Response to McConnell, Stoner, TerBeek, and Thomas (19 pages).
Posted at 6:07 AM