Is Originalism Too Hard An Enterprise? [No. 86]
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Is Originalism Too Hard An Enterprise? [No. 86]

One frequent complaint about originalism is
that it’s quite a hard enterprise – it’s hard to do, it’s not going to succeed, it requires
a lot of skills judges don’t have, it requires a lot of investigation into history, there
are these hard questions about what kind of originalism to undertake. So the question is not is originalism too
hard now. That’s certainly not the only question. The question is, what can one think of a world
where originalism would become much easier? And originalism has already, in my view, becoming
much easier for judges, it’s becoming much more refined because of the work that’s being
done. Originalism depends on generations of people,
including generations of students to contribute to it. It also becomes easier over time. And so one should think, if one is interested
in originalism, that one is becoming a participant in a culture, in a enterprise of discovery
and of contribution. And that’s one of the most exciting parts
of being an originalist today I think it is important to understand that
originalism is science in the sense that it’s looking at empirical facts of the world. As opposed to politics which, while it sometimes
considers empirical facts of the world, we hope it will consider some empirical facts
of the world, necessarily imports the value judgements of the politicians and the voters. And that’s why originalism is really different
and why you might think it’s really very important if you think that a constitution gives a more
scientific foundation to a society. Not that we may not want to amend the constitution
but that at any time it’s important in society to have a structure that’s actually not built
on the values of the day. And so that’s actually one of the arguments
for the importance of the division of what I would consider the scientific enterprise
of politics and the more political, or maybe more humanistic, enterprise of our more daily
political struggle.


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