nonoriginalist

That Scalia applies nonoriginalist standards from the Warren Court might shock readers who view him as the exemplar of judicial restraint.

Darren Hutchinson: Antonin Scalia, Gender, Race and Hypocrisy

The paper concludes that because the meaning of the Privileges and Immunities Clause at the time of ratification with rife with ambiguity, a nonoriginalist approach is a better way to tackle the incorporation problem, even for a New Originalist determined to base constitutional adjudication on methods for ascertaining constitutional meaning that were accepted in the framing era.

Rosenthal on Original Public Meaning and the Problem of Incorporation

This Article considers the import of originalism's practical success for nonoriginalist constitutional theories.

Archive 2008-10-01

Here's the abstract: In this article we argue that originalism advances the welfare of the present day citizens of the United States, because it promotes constitutional interpretations that are likely to have better consequences today than those of nonoriginalist theories.

Archive 2008-03-01

While this analysis should be of obvious interest to originalists, it should also be of interest to any nonoriginalist who believes that the original meaning of the text is at least one factor or "modality" of constitutional interpretation to be balanced against other considerations.

Archive 2008-12-01

Originalists sometimes appeal to these background assumptions to render the meaning of more abstract words or phrases more determinate; nonoriginalist point to odious or outmoded assumptions as proof that original meaning is objectionable and should be rejected.

Archive 2008-12-01

Ferguson with nonoriginalist living constitutionalism suggests that he understands very little about the history of the ratification of the Fourteenth Amendment.

Balkinization

He simply assumes that the Fourteenth Amendment must have been about colorblindness and that the Plessy Court must have been engaged in nonoriginalist judicial activism because he uses the doctrinal categories and the political debates of our own day to understand Plessy.

Balkinization

In this paper, I refute any claim that judicial review was invented in Marbury v. Madison, or that, because it is contrary to the original meaning of the Constitution, it must be justified by some nonoriginalist interpretive methodology.

Libertarian Blog Place

And where inconvenient original meaning is conceded -- for example, with the Ninth Amendment -- the argument then immediately shifts to nonoriginalist claims about judicial

The Volokh Conspiracy