In response to: Meanings or Decisions? Getting Originalism Back on Track
What shall it profit originalism, to gain academic adherents but lose its soul? As Steven Smith tells it, the “new originalism” has made a disastrous Faustian bargain, with Jack Balkin playing Mephistopheles. It may have gained sophistication and intellectual respect, but it’s lost its ability to resist falsehood and manipulation—and lost the firm roots that made “That Old-Time Originalism” great. To Smith, the new originalism lacks any claim to the Framers’ authority. Because it looks to the meanings of the Framers’ words, and not to their substantive expectations, it can be made by skilled sophists to justify things “the enactors wouldn’t…
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Introduction It is an honor to participate in this forum with my colleague Steve Smith and with Will Baude and Steven Sachs – all of them friends. Steve Smith’s essay continues his criticism of the new originalism in favor of the old originalism – a position that Steve previously defended in his paper “That Old-Time…
For more than a decade, the “New Originalism” has been identified with a focus on the Constitution’s original meaning (not its original intent) and with the admission that original meaning won’t perfectly constrain judges. Steven Smith challenges that version of originalism. The challenge should be rejected, but in the course of rejecting it we may…
I’m sincerely honored that Mike, Will, and Steve (whose expertise in these matters, both individually and collectively, greatly exceeds my own) would make the effort to comment on my essay. The comments advance powerful objections to “decisional originalism,” as I’ve reluctantly called it. Even so, I’m not persuaded– not yet anyway-- to abandon the idea. …