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Is Originalism Too Hard An Enterprise?

Professor John McGinnis explains that although originalism can be difficult, the enterprise becomes gradually easier as more originalist work is done. There is now a community of scholars, judges and students who have developed originalist methods that can be used in scholarship and judicial review. Originalism aims to provide an objective basis for evaluating the constitution and that’s an important endeavor, even when it is difficult to achieve. https://youtube.com/watch?v=Bizgnh_LWAc


One frequent complaint about originalism is that it's quite a hard enterprise - it's hard to do, it's not going to succeed, it requires a lot of skills judges don't have, it requires a lot of investigation into history, there are these hard questions about what kind of originalism to undertake. So the question is not is originalism too hard now. That's certainly not the only question. The question is, what can one think of a world where originalism would become much easier? And originalism has already, in my view, becoming much easier for judges, it's becoming much more refined because of the work that's being done. Originalism depends on generations of people, including generations of students to contribute to it. It also becomes easier over time. And so one should think, if one is interested in originalism, that one is becoming a participant in a culture, in a enterprise of discovery and of contribution. And that's one of the most exciting parts of being an originalist today I think it is important to understand that originalism is science in the sense that it's looking at empirical facts of the world. As opposed to politics which, while it sometimes considers empirical facts of the world, we hope it will consider some empirical facts of the world, necessarily imports the value judgements of the politicians and the voters. And that's why originalism is really different and why you might think it's really very important if you think that a constitution gives a more scientific foundation to a society. Not that we may not want to amend the constitution but that at any time it's important in society to have a structure that's actually not built on the values of the day. And so that's actually one of the arguments for the importance of the division of what I would consider the scientific enterprise of politics and the more political, or maybe more humanistic, enterprise of our more daily political struggle.

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