That Old-Time Originalism

Abstract

In recent years, and especially lately, both the defense and criticism of originalism have become more theoretically sophisticated than they once were, reflecting the influence of philosophy in an analytical vein. But has this sophistication been beneficial? And is it in any case irresistible, so that as Larry Solum suggests, "if philosophical tools make significant contributions to constitutional theory, then constitutional theorists must master them"? This essay questions whether increased philosophical sophistication has benefitted originalism and tentatively concludes that there can be commerce between law and philosophy without colonization.

Keywords: constitutional law, jurisprudence, originalism, constitutional theory

JEL Classification: K10