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Originalism and the Bill of Rights, 15 Harvard Journal of Law & Public Policy 141 (1992)


I shall begin with a disclaimer. I am a separation of powers scholar. I do not think of myself as a Bill of Rights scholar. I study the Constitution of 1787. My bicentennial was four years ago. This topic for me is something new.

In my separation of powers jurisprudence, I often am described by those who have read my work as an originalist. I do not necessarily describe myself that way, but that label will do for the time being. I am something of an originalist, not because I believe that the Founders wanted things that way, but because, for some of the reasons that Gary Lawson and Lino Graglia have stated, and for some other reasons that I will not bother to explain just now, originalism—at least the right form of originalism—is the only methodology through which courts can solve both the problems of determinacy and justification that Gary Lawson mentions.

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