Jamie G. McWilliam (J.D. Harvard '22) has posted Negative Originalism (76 Rutgers U.L. Rev. Comments 1 (2023)) (8 pages) on SSRN. Here is the abstract:
Many critiques of originalism ultimately target its alleged failure to provide a noncontroversial outcome in every case. This essay suggests that the most powerful feature of originalism is not its ability to reach one determinant “original meaning,” all the time. Instead, casting the three primary theses of originalism—the interpretation-construction distinction, fixation thesis, and constraint principle—as tests for determining whether a given interpretation “fits” a given legal text in a Dworkinian sense reveals originalism’s more subtle function. That is, originalism serves primarily as a negative interpretative tool that narrows the scope of possible interpretations of a potentially infinitely underdetermined text, keeping judges faithful to the communicative content of the text.
Agreed! This is an important often-overlooked argument for originalism.
Posted at 6:36 AM