Marshall’s Method and Why It Might Matter

Jeremy TelmanThe version of originalism popularized in the 1980s viewed itself as a reform movement, responding to the perceived excesses of the Warren and Burger Courts.  It made few claims regarding originalism’s historical pedigree.  Justice Scalia memorably articulated the position in his 1989 essay Originalism: The Lesser Evil:It may surprise the layman, but it will surely not surprise the lawyers here, to learn that originalism is not, and had perhaps never been, the sole method of constitutional exegesis. It would be hard to count on the fingers of both hands and the toes of both feet, yea, even on the hairs of one's youthful head, the opinions that have in fact been rendered not on the basis of what the Constitution originally meant, but on the basis of what the judges currently thought it desirable for it to mean.Justice Scalia and the New Originalists of the 1990s were not troubled by the notion that they were engaged in law reform.  As…

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