At last month's Federalist Society National Lawyers' Convention, which had the theme of "Originalism on the Ground," I got to speak on a panel addressing the question "How Originalist Is the Supreme Court?" My answer was an optimistic one: "more than you might think—and it's getting better all the time." As I argued,
Despite occasional denunciations from its perceived critics on the bench, originalism remains still the coin of the realm of legal argument. As Judge Posner (no friend to originalism) wrote decades ago, originalism was and is the orthodox mode of legal justification.
And despite occasional betrayals from the perceived friends of originalism on the bench, they too are doing better than one might think. But to see this we need to recognize three distinctions:
- The distinction between a rule, and its applications;
- The difference between pursuing the original law, and merely the original meaning;
- And the difference between originalism as a standard or as a method of interpretation—as a destination, or as a route.
When we draw these distinctions, we can see that originalism is in fact central to the practice of American courts, including the Supreme Court—and that they're no worse at it than at anything else they do.
Like the person who's a vegetarian not because they love animals, but because they hate plants, I take this view not because I'm an optimist about originalism, but because I'm a pessimist about everything else done by our courts.
For the rest (and a video of the event), see below!
