Michael L. Smith (Glaser Weil Fink Howard Avchen & Shapiro LLP) has posted Originalism and the Inseparability of Decision Procedures from Interpretive Standards (24 pages) on SSRN. Here is the abstract:
In his forthcoming article, Originalism: Standard and Procedure [Ed.: available here], Stephen Sachs describes an unending debate between advocates of originalism and their critics. Originalists argue that certain historic facts play a role in determining the meaning of constitutional provisions. Critics respond that making determinations about these facts is difficult, if not impossible for judges, attorneys, and the general public. Sachs seeks to rise above this debate, arguing that originalism should not be treated as a procedure for interpreting the constitution, but instead as a standard by which interpretations may be judged. Even if originalism does not set forth a set of rules for its implementation, it is still of use to the extent that it provides an account of what interpretations are correct or mistaken, and may point interpreters toward “rules of thumb” for interpreting the Constitution.
This Article takes issue with this approach. First, Sachs argues that treating originalism as a standard, rather than a procedure, effectively avoids critiques over difficulties of implementing originalism. But whether originalism can be implemented remains an important consideration when choosing between standards of interpretation. If a standard typically cannot be implemented that standard is less preferable to an alternate standard of interpretation that is easier to implement. Second, the move to a focus on standards further alienates discussions that are already technical and theoretical from the practical realities that judges, attorneys, and the general public face. Even if treating originalism as a standard avoids implementation critiques, theorizing about originalism at this level is even less useful for actors in the real world.
Originalism is not like other instances in law where statutes or opinions refer to other opinions, statutes, or third-party publications. Instead, originalism requires rigorous and complex analysis of historic facts to determine the original public meaning of constitutional provisions—an undertaking that most judges, attorneys, members of the public, and even legal academics may find challenging. Treating originalism as a standard does not avoid this concern—and even if it did, these issues should be confronted, rather than evaded.
Posted at 6:23 AM