I have written about Originalist Social Movements in the contexts of the current challenge to the individual mandate. I aimed to distinguish between certain progressive social movements that are grounded in living constitutionalism, and originalism social movements that are grounded in the text and history of our Constitution:
There is a strong social movement afoot today to restore the original meaning of the Constitution, and learn more about how the Constitution was understood by those who ratified it. This type of social movement, I think, is immune to the types of criticisms McGinnis and Rappaport lodge against Balkin’s social movements. Redemptive constitutionalist social movements cannot rely on the text or history of the Constitution (except Balkin’s theories), so they must rely on notions outside of the Constitution to advance their beliefs. In contrast, the originalist social movements–which undoubtedly are trying to influence constitutional law and put stuff “on the wall” that was “off the wall”–at least bears the mantle of grounding that agenda in history.
Moving forward, I think it is important to keep this distinction in mind.
Check out Lee Strang’s fantastic article, titled Originalism as Popular Constitutionalism?: It Depends. Lee covers a lot of these points, and explores how popular constitutionalism and originalis intersect. Here is the abstract:
In this Article, I accomplish two goals: first, I briefly describe the rise of popular constitutionalism as a movement in the legal academy along with its basic tenets; and second, I demonstrate that, given the diversity of originalist scholarship, originalism’s relationship to popular constitutionalism depends on the version of originalism one adopts. In the heart of Originalism as Popular Constitutionalism? I describe five axes upon which originalism pivots toward or away from popular constitutionalism. My claim is that the nuances of contemporary originalist scholarship – characterized by these five axes – make it impossible to definitively describe the relationship between originalism and popular constitutionalism.
I first came across Lee’s scholarship as an editor at the George Mason Law Review where we published on of his fine articles. I have been very impressed with his work, and highly recommend this piece.
H/T Legal Theory Blog