Croy on the New Originalism

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) 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…

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