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

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.