Novel Perspectives on Due Process Symposium: Constructing the Original Scope of Constitutional Rights

This response argues that Wuerth’s paper illustrates the most persuasive way to go about the task—one question at a time, with an emphasis on conventional legal materials and forms of argumentation. Some questions will call for especially imaginative constructions. This does not render them irrelevant, but it does caution some modesty about the extent to which they ought to trump competing constructions arising from practice and precedent. Despite her reluctance, then, Wuerth’s methods are entirely consistent with a confident originalism.