Dec 11, 2012

Posted in Originalism

What do you call an opinion that’s not originalist? (And Bryan Garner weighs in)

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I frequently want to stress the fact that an opinion does not use originalism. What would you call the opposite of an originalist opinion? Nonoriginalist? Unoriginalist? I don’t like unoriginalist, because it is too similar to unoriginal, which has a totally different meaning.

On Twitter, you ask, and you shall receive.

https://twitter.com/Greg651/status/276109439428337664

Well who better to opine than Bryan Garner, the top lexicographer of our generation.

Bryan suggests:  Unmoored. Antitextual. Pro-morpher. Protean.

I like unmoored (I’ve used that in the past). I don’t think antitextual works. An opinion can be originalist, but not textualist (e.g. Justice Kennedy’s opinion in Seminole Tribe that looks to the history, but not the text of the 11th Amendment).

Pro-morpher and Protean are too cool.

What say you?

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  • http://twitter.com/Greg651 greg

    Just glad too help :)

    • http://joshblackman.com/ Josh Blackman

      Thanks!