The Volokh Conspiracy

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Volokh Conspiracy

Smith on "Getting Originalism Back on Track"


Professor Steven Smith has a new essay at the Liberty Law Forum, titled Meanings or Decisions? Getting Originalism Back on Track. It begins:

For what is the point of drawing up dumb, silent statements of laws, if anybody may attach a new meaning to the words to suit his own taste, find some remote interpretation, and twist the words to fit the situation and his own opinion?—John Locke

For originalists, must the guiding criterion of constitutional interpretation be original meaning (whether understood in intentionalist or public meaning terms)? You might thing the answer has to be yes. That is just what it means to be an originalist: to connect constitutional interpretation to original meaning.

I think the question is more complicated-and more fraught. Ironically, a focus on original meaning has led originalism to lose touch with its own goals. I will try in this brief essay to explain how this is so. And I will suggest an alternative that might help originalism get back on track. Until someone comes up with a better name, I will tentatively call this alternative "decisional originalism."

I'm writing a response (as are Steve Sachs and Mike Rappaport) and our responses should be published soon. I'll link to them when they are.