nonoriginalists

Suffice it to say that there are good reasons for considering the original meaning of a constitutional provision when applying the provision — and that even many nonoriginalists (such as Justice Brennan) were willing to consider such original meaning, though not necessarily to view it as binding.

The Volokh Conspiracy » Originalism and Linguistic Questions 2010

Suffice it to say that there are good reasons for considering the original meaning of a constitutional provision when applying the provision — and that even many nonoriginalists such as Justice Brennan were willing to consider such original meaning, though not necessarily to view it as binding.

The Volokh Conspiracy » Originalism and Linguistic Questions 2010

Anyone who is concerned about the actual wording of the Constitution, which many nonoriginalists claim to be, should be interested in this thesis.

The Volokh Conspiracy » The Subjects of the Constitution 2010

But the 9th Amendment is the shakiest grounds for nonoriginalists, because it is so expansive.

The Volokh Conspiracy » Justice Brandeis 2009

There is a hermeneutics of suspicion going on that is the mirror image of the suspicion that many conservatives tend have about why liberals are nonoriginalists.

Balkinization 2006

Larry Solum asks why nonoriginalists still talk about "original intentions" when in fact most legal theorists who are originalists have long ago moved on to some variety of original public meaning.

Balkinization 2006

When originalists like Scalia conflate these two ideas, and insist that we are bound by original expected application (except of course, when we aren't), nonoriginalists figure that there isn't much practical difference between today's original meaning adovcates and yesterday's original intentions advocates.

Balkinization 2006

Randy's book, Restoring the Lost Constitution, was a real advance in the debate about originalism, and showed how nonoriginalists could come to terms with the arguments that originalists were making; he has elaborated these themes in various blog posts on The Volokh Conspiracy.

Balkinization 2006

One is that most nonoriginalists don't see much difference * in practice* between the positions of those who used to talk about the intentions of the framers those who talk about original understanding and those who talk about original meaning, even though these positions are theoretically distinct and have different theoretical weaknesses.

Balkinization 2006

The second reason for the conflation by nonoriginalists, however, is far more important.

Balkinization 2006