Adam Lamparello (Indiana Tech Law School) has posted Bridging the Divide between Justice Kennedy's Progressivism and Justice Scalia's Textualism: Introducing the Concept of Negative Originalism (17 Florida J. of Law and Public Policy 4, 2007) on SSRN. Here is the abstract:
This Article endeavors to bridge the divide between Justice Kennedy's “progressive” approach and Justice Scalia's “originalist” approach, by introducing the concept of “reverse” or negative originalism. "Reverse originalism” proposes, in accordance with Justice Kennedy's approach, that evolving or contemporary perspectives of fairness and due process should inform the search for outcomes that are consonant with basic notions of liberty. Indeed, the collective conscience of individuals, groups and institutions, over time, both domestic and international, can provide important insights into the very meaning of liberty that lies at the core of the U.S. constitutional framework. Importantly, however, progressivism is not without its limitations and, if applied exclusively, would threaten to undermine years of Supreme Court jurisprudence by eviscerating the stare decisis doctrine, risking uncertainty and unpredictability for future litigants, unduly compromising the core majoritarian premise of our democratic system, and potentially investing in judges a legislative or policymaking power that transgresses the boundaries of proper judicial review.
Posted at 6:02 AM