Originalism, Vintage or Nouveau: 'He Said, She Said' Law

Abstract

This paper argues that all forms of Originalism, new and old, ultimately worship the wrong God. While I share the Originalists’ desire for judicial fidelity to the actual, enduring law, analysis of their reasoning reveals that what Originalism honors is not the meaning of the law, but the original meaners. More exactly, Originalists tend to conflate the original meaning of a term with that term’s objective meaning. They confuse that which is objective with that which a particular group of people thought was objective – which is not the same thing. In so doing, the Originalist prescription for judicial review reduces law to a "he said, she said" dispute – a contest over whose say-so should carry the day that is not resolved by evidence and logic. This is ultimately as subjectivist as many of the theories that Originalists reject and it undermines the very ideal that they wish to defend: the objective Rule of Law.