Originalisms' Indifferences?: Friendly Amendments to Professor Girgis's "Originalism's Difference?"

Authors

• Jed Handelsman Shugerman, Boston University School of Law

Abstract

In this Essay, the author begins by summarizing their many areas of agreement with Girgis’s Dunwody Lecture, Originalism’s Difference?. Then they turn to each of Girgis’s three differences to ask a question and perhaps pose a critique. Has Girgis placed too much emphasis on “constraint”? Is “intensity” a virtue without sufficient care, balance, and open-mindedness, and perhaps a vice if it is a tendentiously intense control-f search? Is avoiding “palpable” moral reasoning a virtue if the Court is using historical evidence to cover for ideological motives and cognitive biases? This Essay turns to some of Girgis’s own examples of problematic originalism to further illustrate the breakdown of constraint (the presidential removal arguments) and even a troubling sign of anti-originalism (presidential immunity in Trump v. United States). Finally, this reply suggests how Girgis’s approach is similar to modest “lexical” or “pluralist” originalism and how these methods, with an appropriate burden of proof on those making an originalist historical claim, might help save originalism from itself.

Recommended Citation

Jed Handelsman Shugerman, Originalisms' Indifferences?: Friendly Amendments to Professor Girgis's "Originalism's Difference?", 77 Fla. L. Rev. 2003 (2025).
Available at: https://scholarship.law.ufl.edu/flr/vol77/iss6/3