Thomas Colby and Peter J. Smith, Living Originalism (October 7, 2009). GWU Legal Studies Research Paper No. 393; GWU Law School Public Law Research Paper No. 393; Duke Law Journal, Vol. 59, p. 239, 2009. Available at SSRN: http://ssrn.com/abstract=1090282
Originalists routinely argue that originalism is the only coherent and legitimate theory of constitutional interpretation. This Article endeavors to undermine those claims by demonstrating that, despite the suggestion of originalist rhetoric, originalism is not a single, coherent, unified theory of constitutional interpretation, but is rather a disparate collection of distinct constitutional theories that share little more than a misleading reliance on a common label. Originalists generally agree only on certain very broad precepts that serve as the fundamental underlying principles of constitutional interpretation: specifically, that the “writtenness” of the Constitution necessitates a fixed constitutional meaning, and that courts that see themselves as empowered to give the Constitution some avowedly different meaning are behaving contrary to law. Originalists have been able to achieve agreement on these broad underlying principles, but they have often viewed as unduly narrow and mistaken the understanding held by the original originalists–the “framers” of originalism, if you will–as to how those principles must be put into action. And originalists disagree so profoundly amongst themselves about how to effectuate those underlying principles that over time they have articulated–and continue to articulate–a wide array of strikingly disparate, and mutually exclusive, constitutional theories. In this regard, originalists *240 have followed a living, evolving approach to constitutional interpretation.
