Originalism, Official History, and Perspectives versus Methodologies

35 Pages Posted: 14 Sep 2023

See all articles by Keith N. Hylton

Keith N. Hylton

Boston University - School of Law

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

Hylton, Keith N., Originalism, Official History, and Perspectives versus Methodologies (September 13, 2023). Boston Univ. School of Law Research Paper No. 23-34, Available at SSRN: https://ssrn.com/abstract=4571195 or http://dx.doi.org/10.2139/ssrn.4571195

Keith N. Hylton (Contact Author)

Boston University - School of Law ( email )

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