Kelsenian Originalism in Europe

This Article challenges the prevailing view that originalism is a uniquely American phenomenon, unlikely to gain traction elsewhere. By uncovering emerging originalist trends in Europe, it offers new insights into the conditions under which originalism develops and proposes how its underlying ideas can be effectively harnessed by legal thinkers. Traditionally, post-World War II Europe favored a functional approach to legal integration, driven by courts and judges reshaping the legal order. However, recent institutional clashes and legal conflicts have spurred interest in originalism, particularly as a means of safeguarding the constitution from external political pressures—a trend that resonates with renewed European efforts to maintain fidelity to the political will enshrined in constitutional texts. This Article thus explores the rising European interest in originalism through the lens of Hans Kelsen’s legal positivism. Despite differences, it argues that originalism rekindles Kelsen’s concerns, underscoring their shared emphasis on the role of constitutional law in contemporary democracies. By drawing parallels between Kelsen’s theories and originalism, this Article identifies crosscultural issues inherent to constitutionalism. Ultimately, this analysis challenges the notion that originalism is necessarily an insular American concept and highlights its significance within the field of comparative constitutionalism.