The American originalist is resolutely uninterested in other countries, even those that are just as free and committed to the rule of law.
The Center for the Study of Constitutional Originalism at the University of San Diego recently had its Fifth Annual Hugh and Hazel Darling Foundation Works in Progress Conference. The videotape for the conference should be available in the near future. While we are waiting, I thought I would offer an excerpt of my remarks at the beginning of the conference, discussing the progress of originalism as an academic field.
It is a real pleasure to see how this conference has grown over time. . . .
The success of the conference is no doubt a reflection of the success of originalism as an academic area. Originalism continues to grow, showing all the indicia of a prospering academic field. Every year, it produces a large number of articles. And now, there are a growning number of books on originalism that have recently been published or are scheduled for publication, such as those by Jack Balkin, Frank Cross, Kurt Lash, Sai Prakash, Justice Scalia and Bryan Garner, and my own work with John McGinnis. And of course there tend to be symposia on these works, with the symposia on Jack Balkin’s book constituting its own mini-field.
The subject of originalism also continues to attract scholars, including younger ones who are developing new theories. Stephen Sach’s piece for this conference – offering a new theory of originalism (Originalism as a Theory of Legal Change) – is a significant example.
That new theories are regularly being proposed means, of course, that there may be a large number of different theories out there. While some have argued that this aspect of originalism is a problem for the argument of constraint – which it might or might not be – it is a sign of success in an academic field, showing interest, new ideas, and progress.
Another characteristic of a growing field is that it spreads into new areas. This has also been true of originalism. Originalism has become of interest not merely to constitutional law professors, but also to scholars in the area of criminal procedure. And scholars from other disciplines, such as philosophers and historians, have become increasingly interested in the subject, even if in some cases only to criticize originalism.
One area I want to highlight is the growth of interest in originalism in comparative constitutional law. Obviously, we have a paper on this subject by Yvonne Tew, but last year’s conference also included two papers in this area. And I have noticed, even though it is certainly not my area, a significant debate on the subject about whether originalism is and should be an American phenomenon, with different positions being advocated by Jack Balkin, Jamal Greene, Lael Weis, and others, including of course Yvonne.