Randy E. Barnett (Georgetown University Law Center) has posted The Gravitational Force of Originalism (Fordham Law Review, Forthcoming) on SSRN. Here is the abstract:
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In part I of this essay, prepared for the Fordham conference on “The New Originalism and Constitutional Law,” the author describes four aspects of the New Originalism: (1) The New Originalism is about identifying the original public meaning of the Constitution rather than the original framers intent; (2) The interpretive activity of identifying the original public meaning of the text is a purely descriptive empirical inquiry; (3) But there is also a normative tenet of the New Originalism that contends that the original public meaning of the text should be followed; (4) Distinguishing between the activities of interpretation and construction identifies the limit of the New Originalism, which is only a theory of interpretation. In part II, he then discusses how originalism can influence the outcome of such cases as D.C. v. Heller, McDonald v. Chicago, and NFIB v. Sebelius. The author suggests that, so long as there are justices who accept the relevance of original meaning, originalism can exert a kind of “gravitational force” on legal doctrine even when, as in McDonald and NFIB, the original meaning of the Constitution appears not to be the basis of a judicial decision.
