The New and Old Originalism: A Discussion
"Meanings or Decisions? Getting Originalism Back on Track." Library of Law and Liberty. December 2, 2014.
29 Pages Posted: 11 Feb 2015 Last revised: 16 Oct 2020
Date Written: February 9, 2015
These five essays, which were originally published on the Library of Law and Liberty website, explore several themes involving the new and old originalism. Steve Smith’s initial essay criticizes the new originalism and proposes an alternative that he calls “decisional originalism.” Michael Rappaport then reacts to Smith’s essay, arguing in favor of an unbiased originalism rather than the original decision. William Baude argues that the new originalism is more consistent with our current law. Stephen Sachs then defends the new originalism as respecting the rules the Framers enacted, if not always the out-comes they expected to achieve. Steve Smith concludes the exchange with a response to his critics.
Keywords: originalism, new originalism, old originalism,constitutional law, constitutional interpretation, interpretation, jurisprudence
JEL Classification: K10
Suggested Citation: Suggested Citation