A Conclusion in Search of a History to Support It
43 Texas Tech Law Review 29 (2010)
22 Pages Posted: 7 Aug 2017
Date Written: 2010
In this article, I examine originalism's legitimacy as an interpretive theory by addressing two issues. First, I use essays written by two prominent originalists to demonstrate that Justice Scalia, by any measure the most important proponent of this theory, was not himself an originalist. This conclusion alone does not necessarily discredit the theory, but it supplies strong evidence of originalism's true nature as a tool for winning arguments.
Second, I compare the historical arguments employed by Justice Souter in a search and seizure opinion with Professor Davies' detailed critique challenging the validity of the Court's historical analysis in that case. This critique attempts to demonstrate that originalism generally does not and cannot solve twenty-first century problems arising under ambiguous eighteenth century texts.
The discussion demonstrates that originalism' s deficiencies are not bound to a particular ideology. In the Fourth Amendment context, for example, its use by those advocating greater government authority and by those favoring greater restrictions on that power is flawed for the same reasons. Both sides in that debate continue to deploy it, but not because originalism leads to historical truth. They use it as a device to help them prevail in constitutional disputes.
Suggested Citation: Suggested Citation