Originalism, Official History, and Perspectives versus Methodologies
35 Pages Posted: 14 Sep 2023
Date Written: September 13, 2023
This paper addresses a well-worn topic: originalism, the theory that judges should interpret the Constitution in a manner consistent with the intent of its framers. I am interested in the real-world effects of originalism. The primary effect advanced by originalists is the tendency of the approach to constrain the discretion of judges. However, another effect of originalism that I identify is the creation of official histories, a practice that imposes a hidden tax on society. Another question I consider is whether originalism should be considered a methodology of analyzing the law or a perspective on the law. I argue that originalism is closer to a perspective than a methodology.
Keywords: originalism, official history, Dred Scott, original intent
JEL Classification: K00, K10
Suggested Citation: Suggested Citation