Originalism and James Bradley Thayer

Steven G. Calabresi, J. Clayton, Henry R. Barber

Research output: Contribution to journalArticle

Abstract

This Essay provides an originalist appraisal of Professor James Bradley Thayer’s famous book on The Origin and Scope of the American Doctrine of Constitutional Law. I critique Professor Thayer’s thesis on multiple levels, pointing out important aspects of the original understanding that the Framers would have had of the meaning and origins of the U.S. Constitution, as well as disputing Professor Thayer’s discussion of the history of American judicial review from 1790 to the publication of his book in 1893. I conclude that no person can be both an originalist and a Thayerian. The two theories contradict one another and cannot be jointly adhered to. I then explain why I prefer originalism to Thayerianism as a normative matter.

Original languageEnglish (US)
Pages (from-to)1419-1454
Number of pages36
JournalNorthwestern University law review
Volume113
Issue number6
StatePublished - Jan 1 2019

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ASJC Scopus subject areas

  • Law

Cite this

Calabresi, S. G., Clayton, J., & Barber, H. R. (2019). Originalism and James Bradley Thayer. Northwestern University law review, 113(6), 1419-1454.