The Failed Promise of Originalism [Hardcover]

Originalism is an enormously popularand equally criticizedtheory of constitutional interpretation. As Elena Kagan stated at her confirmation hearing, We are all originalists. Scores of articles have been written on whether the Court should use originalism, and some have examined how the Court employed originalism in particular cases, but no one has studied the overall practice of originalism.The primary point of this book is an examination of the degree to which originalism influences the Court's decisions. Frank B. Cross tests this by examining whether originalism appears to constrain the ideological preferences of the justices, which are a demonstrable predictor of their decisions. Ultimately, he finds that however theoretically appealing originalism may seem, the changed circumstances over time and lack of reliable evidence means that its use is indeterminate and meaningless. Originalism can be selectively deployed or manipulated to support and legitimize any decision desired by a justice. The Failed Promise of Originalismis more comprehensive than prior studies, and Cross presents his findings with admirable clarity and candor . . .The Failed Promise of Originalismlargely succeeds in debunking the notion that originalism is comparatively more effective than its rivals at limited judicial discretion. Frank Cross demonstrates that originalism is no cure for judicial discretion.The Failed Promise of Originalismshould explode the myth that originalism will constrain judges more than other constitutional theories. Cross offers the first monograph length, empirical investigation of the practice of originalism at the Supreme Court. The heart of the book is his answer to the question of whether originalism furthers 'the rule of law by constraining ideological judging' . . . Highly recommended. Develops an empirical analysis of the use of originalism in Supreme Court decisions to show how claimed adherence to originalism ultimately does not conl¬