Author granted license

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type

Working Paper

Publication Date

3-5-2022

Language

en-US

Abstract

“Originalism” is a term shrouded in ambiguity and ripe for equivocation. A recent article by Stephen Sachs in the Harvard Law Review tries to clarify discussion by distinguishing between originalism as a decision standard – set of criteria for ascertaining the truth conditions for propositions – and a decision procedure – a mechanism for ascertaining whether those truth conditions are satisfied in any given context. That is a helpful distinction, but it still leaves much room for multiple and confusing uses of the term “originalism.” Jumping off from comments on Professor Sachs’ article by Mitch Berman and Judge Andrew Oldham, I suggest that a more basic distinction between originalism as a positive theory of interpretation – the ascertainment of communicative meaning – and originalism as a normative theory of action – a prescription for decision-making – is crucial to clear and productive discussion of originalism. Once one keeps focus on those two distinct enterprises, one sees the contours of distinct research agendas that may be difficult to fit together. Originalism-as-interpretation and originalism-as-adjudication ask very different questions and may well call for application of different skill sets, decision procedures, evidence sets, and standards of proof. The problems in linking those enterprises (and never mind the problems of executing either enterprise) may explain why originalist scholarship has not been as useful to originalist judges as jurists like Judge Oldham would like.

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