The Limits of New Originalism

59 Pages Posted: 6 Apr 2012 Last revised: 1 Jun 2021

See all articles by J. Joel Alicea

J. Joel Alicea

Catholic University of America — Columbus School of Law

Donald Drakeman

University of Notre Dame; University of Cambridge

Date Written: April 6, 2012


We argue that New Originalism, which has emerged as the dominant theory of originalism, has a significant methodological limitation for anyone who takes historical research seriously. That limitation arises where historical sources indicate different possible original meanings, which can occur because of New Originalism’s focus on the meaning of the text for a hypothetical, reasonable person at the time of ratification. We describe the first instance of this problem, which occurred in Hylton v. United States (1796). Hylton involved the constitutionality of an excise tax, and we use that case to provide a real example of the impossibility of a New Originalist interpretation when the historical materials provide clear evidence of equally plausible but conflicting meanings. We suggest that Justice Paterson's opinion in Hylton offers a solution to this problem: where New Originalism cannot settle the question of original meaning, judges might turn to Old Originalism's focus on the intentions of the Founders. Our article thus makes three significant contributions to constitutional scholarship: (1) it identifies a critical weakness of New Originalism; (2) it demonstrates how the Supreme Court in the founding era used Old Originalism to resolve this problem; and (3) it represents the most complete analysis of the historical meaning of the taxation provisions in Hylton, which may prove to be useful for present or future litigation over the taxing power.

Keywords: Originalism, New Originalism, Michael Stokes Paulsen, excise, taxation, Hylton

Suggested Citation

Alicea, J. Joel and Drakeman, Donald, The Limits of New Originalism (April 6, 2012). 15 Univ. Pa. J. Const. L. 1161 (2013), Available at SSRN:

J. Joel Alicea

Catholic University of America — Columbus School of Law ( email )

3600 John McCormack Rd., NE
Washington, DC 20064
United States

Donald Drakeman (Contact Author)

University of Notre Dame ( email )

361 Mendoza College of Business
Notre Dame, IN 46556-5646
United States

University of Cambridge ( email )

Centre for Health Leadership
Trumpington Street
Cambridge, CB2 1AG
United Kingdom

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