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Hastings Law Journal

Authors

Lee J. Strang

Abstract

One of the most persistent criticisms of originalism-and also one of the most powerful-is that originalism is not a viable interpretative methodology because of the tremendous technological, social, cultural, religious, and moral change that has occurred since the Constitution's original meaning was created. The Constitution's original meaning arose in contexts so dramatically different from our own, the criticism goes, that a Constitution whose meaning was limited by those contexts would be unworkable in today's world.

This form of criticism of originalism - the challenge of changeis pervasive. In this Article, I argue that originalism has, within its analytical quiver, six tools that permit it to effectively surmount the challenge of change. These six tools are: (I) an originalism of principles (standards, and rules); (2) abduced-principle originalism; (3) indeterminate and underdeterminate original meaning; (4) Article I and state police power; (5) Article V; and (6) nonoriginalist precedent. I describe these mechanisms.

One of the six tools that originalists have used, but which they have failed to articulate, is abduced-principle originalism. Abduced- principle originalism takes two forms. The first form is where an interpreter abduces a legal norm-a rule, standard, or principle-that fits the contemporary uses of the constitutional term or phrase and thereby makes explicit the coherent original meaning of the term or phrase that lay behind the uses. The second form is where an interpreter abduces a legal norm that fits the discrete practices that the Framers and Ratifiers understood the constitutional text in question to prohibit, require, or permit.

Lastly, I show that originalism retains sufficient inflexibility to possess the necessary virtue of having "critical bite."

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