Donald L. Drakeman (University of Cambridge; Notre Dame Law School) has posted What's the Point of Originalism? (Harvard Journal of Law and Public Policy, Vol. 37: 1124-50, 2014) on SSRN. Here is the abstract:
Many of today’s academic debates about originalism miss the main point, at least concerning the Supreme Court. Nothing in the Constitution says how the Supreme Court should make decisions or even that it must issue opinions to explain its reasoning. In fact, when many of the justices were Framers, there were relatively few written opinions, which only became common when Chief Justice Marshall used them to enhance the Court’s power and prestige. Opinions describing a decision’s rationale – originalist or otherwise – thus have always had a significant political and public relations mission. The key question is, therefore, not whether originalism is endorsed by historians or by philosophers of language, or even whether it is demanded by the nature of the Constitution. Rather, the critical issue is whether the public believes that the Court should employ originalism in making its constitutional decisions, which it does by a wide margin (>90%), according to a new survey titled, “Originalism 2012.” These data also show that the New Originalists’ abandonment of the Framer’s goals and intentions in favor of the text’s objective public meaning is not consistent with the public’s interest in the Framers.
Posted at 6:43 AM