Originalism vs. Precedent: An Evolutionary Perspective

Abstract

This essay asks whether originalist interpretive methods, on average, are likely to produce better or worse rules than nonoriginalist methods. By "originalist" I mean to refer to any text-based decision-making technique that permits its user to ignore intervening learning and rely on some aspect of the original text whenever the two conflict. I am not asking about legitimacy; originalist methods may well produce more legitimate outcomes. My focus is rather on the merits of the resulting rules themselves. The approach the essay takes is to describe how cultures learn and, on the basis of that description, assert that such learning is itself generally adaptive. If cultures learn and such learning is adaptive, then any decision-making procedure that systematically ignores such learning is problematic.