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Originalism and Structuralism
Calabresi, Guido
Calabresi, Guido
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Abstract
The article examines the relationship between originalism—the judicial philosophy that interprets the Constitution according to its original meaning—and structuralism, which considers the broader constitutional framework and practical governance needs. Drawing on Justice Black’s originalist approach, it highlights that originalism alone does not restrain judicial discretion, as language and history can be selectively interpreted. The author discusses several constitutional doctrines, such as the Dormant Commerce Clause, diversity jurisdiction, presidential war powers, the Voting Rights Act, and the Fourteenth Amendment’s Anti-Rebellion Clause, illustrating how courts have deviated from strict originalism to accommodate structural necessities of federalism and governance. The article also critiques recent judicial practices, including the issuance of nationwide injunctions by district courts and the Supreme Court’s shadow docket decisions, emphasizing the importance of recognizing when structural considerations justify departures from originalist interpretations to maintain constitutional coherence.