Jud Campbell (Stanford Law School) has posted Tradition, Originalism, and General Fundamental Law (47 Harvard Journal of Law and Public Policy 635 (2024)) (23 pages) on SSRN. Here is the abstract:
It is commonly thought that looking to post-ratification traditions in constitutional interpretation is in tension with originalism. Yet traditionalism was central to American rights jurisprudence at the Founding and during Reconstruction. Back then, Americans jurists widely recognized a cross-jurisdictional body of general fundamental law. Though sometimes mentioned in constitutional text, this body of general fundamental law was not textually grounded and could evolve over time. This essay considers how originalists should account for this jarring notion that the content of fundamental law was partly constituted by an evolving body of traditions. In doing so, the essay highlights an important but often overlooked division in how originalists identify the determinants of fundamental law.
Posted at 6:26 AM