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The limited relevance of originalism in the actual performance of legal roles

Article Abstract:

Arguments that assert the necessity of the originalist approach to interpreting the Constitution are irrelevant because in practice no judges, attorneys or professors are strict originalists. Review of the scholarship of originalists and nonoriginalists reveals that originalists do not always adhere to the original text and nonoriginalists are never completely dismissive of historical evidence. Since all courts, except the US Supreme Court, are bound by precedent, few judges have the opportunity to rely solely on the Constitution. Practicing attorneys would be viewed as incompetent if they were not willing to consider all arguments.

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Interpretivism and the judicial role in a constitutional democracy: seeking an alternative to originalism

Article Abstract:

Judges interpreting constitutional law must do so within the principles of the US as a constitutional democracy. Strict textualist or originalist approaches would yield some answers with certainty, though the interpretive task must be a component of the judicial process. Departures from the text by the political left often result in replacing constitutional values with personal values. The right errs by criticizing the judiciary for being antidemocratic in carrying out a counterdemocratic function established by the Constitution.

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