The originalism of US federal judges or the building of constitutional foundations for economic liberalism since the 1970s

A GREDEG Working paper on the originalism coauthored with Thierry Kirat is available online (in a French version).

The originalism that has been developing in American case law since the 1970s aims to base court rulings on the search for the legislator’s intention from history or from a textual analysis from the vocabulary used. While originalism aims to reduce the judge’s margin of discretion and thus ensure the consistency and predictability of rulings, it is often considered to convey a conservative bias.

This contribution shows how the different variants of originalism have indeed led to the constitutional basis for more conservative policies since the 1970s. It also aims to distinguish between the diverse originalist approaches (as advocated by Robert Bork, Clarence Thomas, or Antonin Scalia) and the particular perspective of the economic analysis of law, as advocated by Richard Posner.