Note: this is our third and last post reviewing Larry Solum’s new paper “Surprising Originalism.”
Thus far, we have assessed the strengths and weaknesses–both “the good” and “the bad”, so to speak–of Larry Solum’s defense of constitutional originalism. Today, however, we survey “the ugly”. Don’t get me wrong. Professor Solum’s “Surprising Originalism” is an excellent paper overall, but he commits a cardinal sin. He neglects to mention the infamous “Three Fifths Compromise” enshrined in the original Constitution [look it up!], a constitutional provision that should give all good faith originalists like Solum some pause. (To his credit, Solum addresses the constitutionally-problematic case of Brown v. Board of Education, the most famous “Living Constitution” case in U.S. history, and his arguments are actually pretty persuasive.) Continue reading →