This paper critically examines Originalism as a method of constitutional interpretation in U.S. jurisprudence. It questions the claim that Originalism uniquely restrains judges from imposing their personal or political preferences when interpreting the Constitution. The analysis contrasts Originalism with competing approaches such as Legal Realism and Living Constitutionalism, both of which emphasize the dynamic interaction between law, society, and judicial experience.
The study traces the historical development from Intentionalism to Textualism and highlights the practical difficulties in determining the “original meaning” of constitutional provisions. Drawing on landmark Supreme Court cases — including Texas v. Johnson (1989) and District of Columbia v. Heller (2008) — the paper demonstrates that even prominent Originalist judges such as Antonin Scalia have occasionally departed from strict Originalist reasoning, revealing inherent inconsistencies within the doctrine.
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- Isabelle Bayreuther (Autor), 2024, Originalism and Judicial Discretion. A Critical Analysis of Constitutional Interpretation in the United States, Múnich, GRIN Verlag, https://www.grin.com/document/1669800
