Originalism: Standard and procedure

Originalism is often promoted as a better way of getting constitutional answers. That claim leads to disappointment when the answers prove hard to find. To borrow a distinction from philosophy, originalism is better understood as a standard, not a decision procedure. It offers an account of what mak...

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Bibliographic Details
Published in:Harvard law review 2022-01, Vol.135 (3), p.777-830
Main Author: Sachs, Stephen E
Format: Article
Language:English
Subjects:
Analysis
Conservatism
Constitutional history
Decision making
Judges & magistrates
Management
Originality
Political aspects
Political philosophy
Procedure (Law)
Toleration
Uncertainty
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Summary:Originalism is often promoted as a better way of getting constitutional answers. That claim leads to disappointment when the answers prove hard to find. To borrow a distinction from philosophy, originalism is better understood as a standard, not a decision procedure. It offers an account of what makes right constitutional answers right. What it doesn't offer, and shouldn't be blamed for failing to offer, is a step-by-step procedure for finding them. Distinguishing standards from decision procedures explains originalism's tolerance for uncertainty about history or its application; justifies the creation of certain kinds of judicial doctrines (though not others); clarifies longstanding battles over interpretation and construction; identifies both limits and strengths for the theory's normative defenders; and gives us a better picture of originalism's use in practice. It would be nice if the correct constitutional theory also gave us easy answers in contested cases. But you can't have everything. Knowing the right standard might not lead us to those answers, but it still might be worth knowing all the same.
ISSN:0017-811X
2161-976X