The New and Old Originalism: A Discussion

29 Pages Posted: 11 Feb 2015 Last revised: 25 Feb 2015

See all articles by Steven Douglas Smith

Steven Douglas Smith

University of San Diego School of Law

Michael B. Rappaport

University of San Diego School of Law

William Baude

University of Chicago - Law School

Stephen E. Sachs

Duke University School of Law

Date Written: February 9, 2015

Abstract

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

Smith, Steven Douglas and Rappaport, Michael B. and Baude, William and Sachs, Stephen E., The New and Old Originalism: A Discussion (February 9, 2015). "Meanings or Decisions? Getting Originalism Back on Track." Library of Law and Liberty. December 2, 2014. ; San Diego Legal Studies Paper No. 15-178; University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 718; U of Chicago, Public Law Working Paper No. 510. Available at SSRN: https://ssrn.com/abstract=2562531

Steven Douglas Smith (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-7969 (Phone)
619-260-2492 (Fax)

Michael B. Rappaport

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

William Baude

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Stephen E. Sachs

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-8542 (Phone)

HOME PAGE: http://law.duke.edu/fac/sachs

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