Document Type
Working Paper
Publication Date
9-13-2023
Language
en-US
Abstract
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
Recommended Citation
Keith N. Hylton,
Originalism, Official History, and Perspectives versus Methodologies
,
in
Boston University School of Law Research Paper Series
(2023).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/3635
