About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

LOG IN
LOG IN


17 Comm. L. & Pol'y 329 (2012)
Originalism 2.0 Meets the First Amendment: The New Originalism, Interpretive Methodology, and Freedom of Expression

handle is hein.journals/comulp17 and id is 329 raw text is: 17 COMM. L. & PoL'Y 329-354 (2012) Routledge Copyright @ Taylor & Francis Group, LLC Taylor&Franis Group ISSN: 1081-1680 print / 1532-6926 online DOI: 10.1080/10811680.2012.717491 ORIGINALISM 2.0 MEETS THE FIRST AMENDMENT: THE NEW ORIGINALISM, INTERPRETIVE METHODOLOGY, AND FREEDOM OF EXPRESSION MATTHEW D. BUNKER* Constitutional originalism emerged as a legal and political movement in the last quarter of the twentieth century largely as a conservative reaction to perceived excesses of the Supreme Court of the United States. Early originalist attempts to formulate a coherent constitu- tional methodology were met with stinging criticism from many schol- ars. In recent years, a group of constitutional scholars has championed a different approach under the rubric the New Originalism. One of the key methodological innovations of New Originalism has been to reject the search for the intentions of the framer or ratifiers of consti- tutional provisions and instead seek to identify the original public meaning of such provisions. This article explores New Originalism in the context of the First Amendment speech and press clauses. The article also analyzes originalist opinions by Supreme Court justices to determine if New Originalism is affecting how the justices approach First Amendment interpretation. Constitutional originalism emerged as a legal and political movement in the last quarter of the twentieth century largely as a conservative re- action to perceived excesses of the Supreme Court of the United States under Chief Justice Earl Warren. The Warren Court (and to a lesser extent that of Warren's successor, Chief Justice Warren Burger) was criticized by some conservatives as having run roughshod over the in- tentions of the framers of the Constitution through the creation of new constitutional rights, through a more expansive view of federal power, and, more broadly, through the theory of a living constitution that :Reese Phifer Professor of Journalism, University of Alabama.