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: Suggested Citation