That Old-Time Originalism

34 Pages Posted: 25 Jun 2008

Date Written: June 23, 2008


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

Suggested Citation

Smith, Steven Douglas, That Old-Time Originalism (June 23, 2008). San Diego Legal Studies Paper No. 08-028, Available at SSRN: or

Steven Douglas Smith (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-7969 (Phone)
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