For all its proponents' claims of its necessity as a means of constraining judges, originalism is remarkably unpopular outside the United States. Recommended responses to judicial activism in other countries more typically take the form of minimalism or textualism. This Article considers why. Ifocus particular attention on the political and constitutional histories of Canada and Australia, nations that, like the United States, have well-established traditions of judicial enforcement of a written constitution, and that share with the United States a common law adjudicative norm, but whose political and legal cultures less readily assimilate judicial restraint to constitutional historicism. I offer six hypotheses as to the influences that sensitize our own culture to such historicism: the canonizing influence of time; the revolutionary character of American sovereignty; the rights revolution of the Warren and Burger Courts; the politicization of the judicial-nomination process in the United States; accommodation of an assimilative, as against a pluralist, ethos; and a relatively evangelical religious culture. These six hypotheses suggest, among other things, that originalist argument in the United States is a form of ethical argument and that the domestic debate over originalism should be understood in ethical terms.
Constitutional Law | Law | Law and Race
Originalism's Race Problem,
Denv. U. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/672