The Limits of New Originalism
Harvard Law School
Donald L. Drakeman
University of Cambridge; Notre Dame Law School
April 6, 2012
University of Pennsylvania Journal of Constitutional Law, Vol. 15
We argue that New Originalism, which has emerged as the dominant theory of originalism, has a significant methodological limitation for anyone who takes historical research seriously. That limitation arises where historical sources indicate different possible original meanings, which can occur because of New Originalism’s focus on the meaning of the text for a hypothetical, reasonable person at the time of ratification. We describe the first instance of this problem, which occurred in Hylton v. United States (1796). Hylton involved the constitutionality of an excise tax, and we use that case to provide a real example of the impossibility of a New Originalist interpretation when the historical materials provide clear evidence of equally plausible but conflicting meanings. We suggest that Justice Paterson's opinion in Hylton offers a solution to this problem: where New Originalism cannot settle the question of original meaning, judges might turn to Old Originalism's focus on the intentions of the Founders. Our article thus makes three significant contributions to constitutional scholarship: (1) it identifies a critical weakness of New Originalism; (2) it demonstrates how the Supreme Court in the founding era used Old Originalism to resolve this problem; and (3) it represents the most complete analysis of the historical meaning of the taxation provisions in Hylton, which may prove to be useful for present or future litigation over the taxing power.
Number of Pages in PDF File: 71
Keywords: Originalism, New Originalism, Michael Stokes Paulsen, excise, taxation, HyltonAccepted Paper Series
Date posted: April 6, 2012
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