Originalism, Vintage or Nouveau: 'He Said, She Said' Law

21 Pages Posted: 27 Nov 2013

See all articles by Tara A. Smith

Tara A. Smith

University of Texas at Austin

Date Written: November 14, 2013

Abstract

This paper argues that all forms of Originalism, new and old, ultimately worship the wrong God. While I share the Originalists’ desire for judicial fidelity to the actual, enduring law, analysis of their reasoning reveals that what Originalism honors is not the meaning of the law, but the original meaners. More exactly, Originalists tend to conflate the original meaning of a term with that term’s objective meaning. They confuse that which is objective with that which a particular group of people thought was objective – which is not the same thing. In so doing, the Originalist prescription for judicial review reduces law to a "he said, she said" dispute – a contest over whose say-so should carry the day that is not resolved by evidence and logic. This is ultimately as subjectivist as many of the theories that Originalists reject and it undermines the very ideal that they wish to defend: the objective Rule of Law.

Suggested Citation

Smith, Tara A., Originalism, Vintage or Nouveau: 'He Said, She Said' Law (November 14, 2013). Available at SSRN: https://ssrn.com/abstract=2354371 or http://dx.doi.org/10.2139/ssrn.2354371

Tara A. Smith (Contact Author)

University of Texas at Austin ( email )

2317 Speedway
Austin, TX 78712
United States

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