Frederick Schauer
90 Geo. Wash. L. Rev. 825
The burgeoning debates about constitutional interpretation show no signs of abating. With surprisingly few exceptions, however, those debates involve a contrast between textualism understood as some form of originalism, on the one hand, and various varieties of less textually focused living constitutionalism on the other. In conflating textualism with originalism, however, the existing debates ignore the possibility of a nonoriginalist textualism—a textualism tethered not to original intent and not to original public meaning but instead to contemporary public meaning—public meaning now. This Article explains the plausibility of just such an “unoriginal” textualism and argues that it might serve the guidance and constraint functions of a constitution better than any of the alternatives now on offer.
