Document Type
Essay
Publication Date
2024
Publication Information
138 Harv. L. Rev. F. 1 (2024).
Abstract
From the Article
Guns, abortion, religious establishments, Presidential power: While today’s Supreme Court identifies as originalist, it has settled constitutional questions on these and many other issues using history and tradition, not just original meaning. Scholars debate whether this trend can be squared with originalism. Last Term, the originalist Justices joined the fray. A close look at their dueling opinions reveals the divergent paths that originalists take when the method is pressed to its limits. It turns out that the purer one’s originalism at the level of theory, the less it constrains judges in practice. That is especially true for cases applying open-ended liberties like free speech and gun rights, where there are systematic reasons to expect balancing over time to be inevitable.
Recommended Citation
Sherif Girgis,
Originalism’s Age of Ironies,
138 Harv. L. Rev. F. 1 (2024)..
Available at:
https://scholarship.law.nd.edu/law_faculty_scholarship/1715
Included in
First Amendment Commons, Second Amendment Commons, Supreme Court of the United States Commons