Darrell A. H. Miller (The University of Chicago Law School) has posted Originalism's Selection Problem (33 Wm. & Mary Bill Rts. J. (forthcoming Dec. 2024)) (23 pages) on SSRN. Here is the abstract:
Originalism is called a “family” of theories. If that’s true, they all suffer from a congenital malady: the problem of selection. This vulnerability afflicts every branch of the family, whether we speak of original intentions originalism, original public meaning originalism, original methods originalism, or original law originalism. To the extent originalism of any variety purports to make descriptive, falsifiable claims about language, history, tradition, practice or law, all of them must confront problems common to any empirical project—what data to collect, how to code that data, over what time period and how long to collect data, and what conclusions to draw from that data.
This essay examines the problem of selection with any originalist theory and what it means for constitutional adjudication. Part I surveys the major branches of originalism, explains how they each share a commitment to the pursuit of objective, knowable, falsifiable fact, and then use that fact as a fixed point to constrain discretion. Part II discusses how each of these theories are vulnerable to methodological challenges familiar to all empirical projects. Part III explores the implications of these methodological challenges for originalism in particular and for constitutional doctrine and theory more generally.
Via Larry Solum at Legal theory Blog, who has significant comments, including:
Sometimes we will have a very high degree of confidence in our judgments about original meaning. Other times and more rarely, there will be significant doubt. If I have a bone to pick with Miller's argument, it is that he seems to assume that originalist methodology must guarantee accuracy and eliminate uncertainty, but no serious originalist of whom I am aware has made the claim that originalist judging is or must be perfect.
Agreed. Though I'm not so sure about the "more rarely." I don't think the case for originalism turns on that being true.
Posted at 6:19 AM