Originalism, Official History, and Perspectives versus Methodologies

Authors

• Keith N. Hylton, Boston University School of LawFollow

Author granted license

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type

Article

Publication Date

5-11-2026

ISSN

0841-8209

Publisher

Cambridge University Press

Language

en-US

Abstract

This paper addresses a well-worn topic: originalism, the theory that judges should interpret the U.S. 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, I identify another effect of originalism: 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

Comments

Updated with published article on 6/3/26.

Draft available as additional file.

Recommended Citation

Keith N. Hylton, Originalism, Official History, and Perspectives versus Methodologies , FirstView Canadian Journal of Law & Jurisprudence 1 (2026).
Available at: https://scholarship.law.bu.edu/faculty_scholarship/3635