The Church of Originalism

40 Pages Posted: 20 Apr 2013 Last revised: 23 Nov 2014

See all articles by S. Whitesell

S. Whitesell

University of Pennsylvania Law School

Date Written: April 7, 2013

Abstract

This paper serves as a soon-after revisionist history of originalism. The interpretive theory by that name has existed in earnest for maybe forty years (even if jurists throughout antiquity have applied similar methods). This recency has not stopped modern legal scholarship from misapprehending it in a way that interferes with properly understanding originalism's modern variants.

Rather than understanding originalism like an empirical science, "a theory working itself pure," we should regard its various camps more like divisions within a belief community. Originalism is thus more like a church and less like a laboratory.

Herein, I briefly retell the story of originalism's emergence and development in order to clarify misconceptions and provide context. The shift from "Old" to "New" originalism is a meaningful phenomenon for this historical inquiry. The context from Part I frames a discussion of modern originalism's variants, where I argue for the rejection of the labels "Old" and "New" as inaccurate and unhelpful. Today's originalists fall broadly in two camps: High Originalists (chiefly the Original-Public-Meaning folks) and Low Originalists (sometimes called old originalists or intentionalists). While the content of these categories may track some other taxonomies, the labels have more conceptual utility. High Originalists have been the ascendant camp since the emergence of New Originalism, but New Originalism is not coterminous with original-public-meaning originalism. And Old Originalists walk among us, some of them quite young, most of them sophisticated thinkers.

I conclude by suggesting that, far from being hangers-on to a bygone era of originalism, the Low Originalists appear to have the better argument and are poised for a resurgence.

Keywords: originalism, constitutional theory, constitutional interpretation, constitutional law

Suggested Citation

Whitesell, S., The Church of Originalism (April 7, 2013). University of Pennsylvania Journal of Constitutional Law, Vol. 15, 2013, Available at SSRN: https://ssrn.com/abstract=2246456

S. Whitesell (Contact Author)

University of Pennsylvania Law School ( email )

Philadelphia, PA
United States

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