Document Type
Working Paper
Publication Date
2025
Language
en-US
Abstract
Sherif Girgis’s Lecture Originalism’s Differences? reflects on what had differentiated originalism from other methods and why those differences are eroding. The differences are (or were): (1) avoiding “ostentatious moral reasoning”; (2) relatedly, constraining judges by requiring originalist historical evidence (i.e., tying judges’ hands); and (3) engaging historical research with more “intensity.” Girgis rightly criticizes the Court for engaging in the same kind of flexibility and creativity that originalists had long rejected.
In this commentary, I highlight our areas of agreement and offer friendly amendments. My title takes Girgis’s title two or three steps further: I use an “s-apostrophe” because I believe we are identifying plural originalisms and even a fracturing of originalism into conflicting methods. I use “indifferences” as a riff on Girgis’s “differences” in two senses: a kind of “non-difference” or indifference to differences and, more specifically, the growing problem that too many self-proclaimed originalists are indifferent to contrary evidence.
I follow Girgis’s apt use of a question mark with some of my own questions about his three differences: For example, is constraint a higher priority than other values? Are “intensity” and “avoiding ostentatious moral reasoning” more noise than signal? Do today’s originalists sometimes show more “intensity” in their research and avoid “ostentatious moral reasoning” because they are using historical sources as cover for the real underlying forces—their moral or ideological commitments?
This Essay turns to some of Girgis’s own examples of problematic originalism to further illustrate the breakdown of constraint and even a troubling sign of anti-originalism (presidential immunity in Trump v. United States). Finally, this reply suggests how Girgis’s approach is similar to modest “lexical” or “pluralist” originalism with appropriate burdens of proof to avoid originalist overreach. Girgis’s wise and open-minded questions might help save originalism from itself.
Recommended Citation
Jed H. Shugerman,
Originalisms' Indifferences?: Friendly Amendments to Sherif Girgis's "Originalism's Difference?"
(2025).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/4187
