Why Do (Some) Originalists Hate America?

Abstract

Imagine a regime whose fundamental law is only to be found in ancient archives, whose mysterious contents take years to unearth, layer by layer. Each new discovery brings about a revolution, as large bodies of established law are unexpectedly discarded and others, previously rejected, spring back into life as the scholars revise earlier conclusions. The operations of government are in constant confusion and disarray. And this state of affairs is likely to persist indefinitely.

That doesn’t sound attractive, does it? But that is where some prominent strands of modern originalist constitutional theory would lead us. This essay explores the methodological steps, each of which in themselves had a certain plausibility, that brought us here.

Keywords: Originalism, Constitutional Law, William Baude, Stephen Sachs, Corpus linguistics

JEL Classification: K10, K30