What's the Point of Originalism?

Harvard Journal of Law and Public Policy, Vol. 37: 1124-50, 2014

28 Pages Posted: 12 Jun 2014  

Donald Drakeman

University of Notre Dame; University of Cambridge

Date Written: June 10, 2014

Abstract

Many of today’s academic debates about originalism miss the main point, at least concerning the Supreme Court. Nothing in the Constitution says how the Supreme Court should make decisions or even that it must issue opinions to explain its reasoning. In fact, when many of the justices were Framers, there were relatively few written opinions, which only became common when Chief Justice Marshall used them to enhance the Court’s power and prestige. Opinions describing a decision’s rationale – originalist or otherwise – thus have always had a significant political and public relations mission. The key question is, therefore, not whether originalism is endorsed by historians or by philosophers of language, or even whether it is demanded by the nature of the Constitution. Rather, the critical issue is whether the public believes that the Court should employ originalism in making its constitutional decisions, which it does by a wide margin (>90%), according to a new survey titled, “Originalism 2012.” These data also show that the New Originalists’ abandonment of the Framer’s goals and intentions in favor of the text’s objective public meaning is not consistent with the public’s interest in the Framers.

Keywords: originalism, constitutional interpretation, original meaning, Framers, Supreme Court, constitutional theory

Suggested Citation

Drakeman, Donald, What's the Point of Originalism? (June 10, 2014). Harvard Journal of Law and Public Policy, Vol. 37: 1124-50, 2014. Available at SSRN: https://ssrn.com/abstract=2448431

Donald Drakeman (Contact Author)

University of Notre Dame ( email )

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

University of Cambridge ( email )

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

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