Originalism and its Tools: A Few Caveats

19 Pages Posted: 19 Nov 2009 Last revised: 16 Dec 2009

Date Written: November 10, 2009


In District of Columbia v. Heller, a majority of the United States Supreme Court endorsed original public understanding as an interpretative tool. This article expresses several caveats applicable to this approach. Courts should not, for example, assume that historians, unlike lawyers, are objective academics with no agenda. A court likewise should be alert to the possibility that a new historical method may have serious technical flaws. In recent years searchable databases of early newspapers have become available. But the search function keys upon optical character recognition, as applied to century old fonts and fading newsprint. The resulting searchable text files are largely gibberish; a negative result on such a search may prove little.

Keywords: constitution, bill of rights, originalism, fourteenth amendment

JEL Classification: K19

Suggested Citation

Hardy, David T., Originalism and its Tools: A Few Caveats (November 10, 2009). Akron Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=1508604

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