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The Federalist Society

Originalism: A Rationalization or Principled Theory?

One of the criticisms of originalism is that it simply is code for conservative ideology. Pointing to figures such as Justice Scalia, some characterize originalism merely as a tool of the Republican Party, suggesting that all originalist jurisprudence is also politically conservative. The first question for originalism is what justifies originalism as a theory of constitutional interpretation as opposed to a political program. Originalists have advanced a variety of justifications for originalism. Some justify it on the basis that originalism is implicit in the use of language. Others suggest that originalism is to be preferred, because it is the theory that delivers the clearest rules. This panel will explore such justifications as well as critiques of originalism. The Federalist Society's Student Division presented this panel at the 2010 Annual Student Symposium on February 26, 2010. Opening remarks were delivered by University of Pennsylvania Law School Symposium Director Ryan Ulloa and Dean Michael A. Fitts of the University of Pennsylvania Law School. Panelists included Prof. Mary Anne Case of the University of Chicago Law School; Prof. Richard Fallon of Harvard Law School; Prof. Saikrishna Prakash of the University of Virginia School of Law; Prof. Keith Whittington of Princeton University; and Hon. Greg Garre, 44th Solicitor General of the United States, as the moderator.
One of the criticisms of originalism is that it simply is code for conservative ideology. Pointing to figures such as Justice Scalia, some characterize originalism merely as a tool of the Republican Party, suggesting that all originalist jurispru...
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