What is Originalism?

Abstract:     
Three kinds of originalist families exist: old-school (framer-intent), neo-originalism and apologetic historicism. Of these three, neo-originalism has had the most recent activity. It has spawned three approaches or "schools of thought:" past reasonable-person meaning; widely-expected case results; and content-criterial hermeneutics. One school of thought that is often mistakenly identified as neo-originalist is something called semantic-gist (which opposes polysemous interpretations). This school is not "originalist" at all. Moreover, the basic difference between old-school and new originalism (all versions) boils down to this: one exalts an historic institutional-procedure (the intention of law makers), while the other exalts an historic cultural framework. This difference is a lot like the one between political science and sociology. The paper proses that we re-name these approaches: (a) institutional-process originalism ("framer intent"); and (b) cultural originalism. Finally, because neo-originalism uses past culture as its ultimate unit of analysis, it cannot survive as a viable philosophy of law. Law can never be the obedience to a past cultural orientation.

Keywords: originalism, law, philosophy of law, constitutional interpretation

working papers series