Adam A. Perlin has posted What Makes Originalism Original? A Comparative Analysis of Originalism and its Role in Commerce Clause Jurisprudence in the United States and Australia (UCLA Pacific Basin Law Journal, Vol. 23, No. 94, 2005) on SSRN. Here is the abstract:
The debate over constitutional interpretation has sometimes been framed as originalists vs. non-originalists. Such categorization, however, belies the distinctions within originalism itself. By taking a comparative approach to the debate over constitutional interpretation, this article first provides an overview of the differences between "original meaning," which has become the prevailing view of originalism in the United States, with "original intentionalism," which appears to be taking hold in Australia and the respective debates surrounding those theories of interpretation. Beyond merely adopting different forms of originalism, this article examines how originalism operates differently as a theory of interpretation in commerce clause jurisprudence in the United States and Australia. Finally, the article hopes to demonstrate how each country's unique history and culture may explain the different choices the United States and Australia have made regarding the type of originalism each country has embraced and how their respective high courts have utilized originalism in their jurisprudence.
Posted at 12:04 AM