Robert J. Delahunty and John Yoo,
Saving Originalism, 113
Mich. L. Rev.
Available at: http://scholarship.law.berkeley.edu/facpubs/2478
In this Review of Unwritten, we will make three points. First, we will describe Amar's method in revealing an unwritten Constitution. We will use women's rights as an example of a gap in the written Constitution that Amar corrects with a variety of sources. While we agree with his results as a matter of policy, we argue that, without the originalism of Biography, Unwritten contains no consistent limits on its sources and methods. Second, we delve deeper into the history of originalism as an interpretive method to show that it is not as flawed, perhaps, as Amar might think. While it arguably might have been conceived as a response to judicial activism of the Warren Court era, originalism has evolved into a sophisticated approach to constitutional interpretation that does not advance any particular political ideology. Third, we take up the question of instrumental or consequentialist reasons for originalism. We use bargaining theory to explain why originalism could have served as an important aid to the formation and continuation of the Union.