Skylar Croy (University of Wisconsin – Madison, Law School, Students) has posted The Problem of Change: Rethinking Critiques of 'New Originalism' (Drake Law Review Discourse, March 2019) (18 pages) on SSRN. Here is the abstract:
How do originalists deal with change? It turns out many minimize the issue. Those that have dealt with it have offered solutions that are, to be generous, not great.
Some originalists, often called "new originalists," acknowledge that the correct application of the original meaning is not always clear. These originalists then turn to non-originalist principles for an answer. Some originalist scholars, such as Professors John O. McGinnis and Michael B. Rappaport, have been highly critical of this aspect of new originalism.
This Comment argues new originalism is a necessary evil. First, it argues the methods originalists have proposed to deal with change are, essentially, all the same. This Comment then labels these methods "abstraction-based originalism" because they all require the interpreter to abstract something–such as a value from the Founding generation. This Comment argues the faults of living constitutionalism are present in both new and abstraction-based originalism, but new originalism is honest because it acknowledges the problem. This Comment also uses arguments made by textualists when discussing purposed-based statutory interpretation against abstraction-based originalism. This Comment concludes that originalist literature should be friendlier to new originalism and proposes one possible area of further study.
Via Larry Solum at Legal Theory Blog, who comments:
Kudos to Croy, a student at Wisconsin, for this very ambitious piece. Although I do not agree with the author's representations regarding the state of the literature and the role of "abstraction," I greatly admire this interesting and thoughtful article.
Posted at 6:24 AM