Why Originalism Won't Die - Common Mistakes in Competing Theories of Judicial Interpretation

58 Pages Posted: 6 Oct 2008

See all articles by Tara A. Smith

Tara A. Smith

University of Texas at Austin

Date Written: October 1, 2008

Abstract

In the debate over proper judicial interpretation of the law, the doctrine of Originalism has been subjected to numerous, seemingly fatal criticisms. Despite the exposure of flaws that would normally bury a theory, however, Originalism continues to attract tremendous support, seeming to many to be the most sensible theory on offer. This paper examines its resilient appeal (with a particular focus on Scalia's Textualism).

By surveying and identifying the fundamental weaknesses of three of the leading alternatives to Originalism (Popular Will theory, Dworkin's value theory, and Minimalism), the paper demonstrates that the heart of Originalism's appeal rests in its promise of objectivity. The paper also establishes, however, that Originalism suffers from a misguided conception of what objectivity is. All camps in this debate, in fact, suffer from serious misunderstandings of the nature of objectivity.

Suggested Citation

Smith, Tara A., Why Originalism Won't Die - Common Mistakes in Competing Theories of Judicial Interpretation (October 1, 2008). Duke Journal of Constitutional Law & Public Policy, Vol. 2, 2007, Available at SSRN: https://ssrn.com/abstract=1276513

Tara A. Smith (Contact Author)

University of Texas at Austin ( email )

2317 Speedway
Austin, TX Texas 78712
United States

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