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Historians and Originalists
Sunstein, Cass R.
Sunstein, Cass R.
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Abstract
Suppose that historians establish that the original public meaning of the First Amendment would produce a much less protective system of free speech than the one to which we have become accustomed, or to an interpretation of the due process clause that does not protect much at all. Or suppose, far more dramatically and consistent with the work of Stanford’s Jonathan Gienapp, that historians establish that contemporary lawyers and judges have mangled the founding, in the sense that they have fundamentally misunderstood what the founding generation established. What then? What comes after history? Nonoriginalists need not struggle much with that question, but originalists might have to bite some hard bullets. They might have to call for a system of constitutional law that contemporary judges, lawyers, politicians, and citizens would deplore. Alternatively, they might defend public meaning originalism on the ground that it protects the rule of law and related values, even if it does not really channel the founding in the sense that historians would, and even if it produces a constitutional order that the founding generation would not recognize and would in fact abhor. But most originalists are unlikely to want to defend their approach on that ground; for better or for worse, they seek to maintain continuity with the founding era. The affective pull of originalism lies in a claim of continuity, even though the best arguments on behalf of originalism have exactly nothing to do with that affective pull.