Why the Demands of Formalism Will Prevent New Originalism From Furthering Conservative Political Goals
27 Pages Posted: 17 Sep 2011
Date Written: September 15, 2011
Proponents of New Originalism propose that their modifications solve the indeterminacy and predictability problems inherent in early conceptions of originalism. This paper argues that excluding extrinsic evidence and relying only on the formal implications of the text merely switches one indeterminacy and predictability problem for another. Rules inherently carry implications unknown to rule writers. In the case of open-textured rules such as those in the Constitution, a broad reading can occupy whole fields of law, whereas a narrow reading can have almost no real-world effects. Because they must ignore extrinsic evidence, new originalists are almost unbound in their choice of interpretation. Thus, a new originalist critique cannot make meaningful claims about how a case should have come out. This casts serious doubt on the legitimacy of new originalism as a conservative theory of interpretation, because rule writers now have no bulwark to protect against unthinkable progressive interpretations of their rules. If rule writers cannot even predict the effects of their rules under new originalism, let alone control those effects, new originalists cannot credibly claim the predictability or legitimacy-enhancing advantages claimed by proponents of early conceptions of originalism.
Keywords: originalism, new originalism, textualism, Constitutional Law, jurisprudence, conservativatism
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