Sherif Girgis (Notre Dame Law School) has posted Originalism’s Difference? (Florida Law Review, Vol. 77, 2025) (30 pages) on SSRN. Here is the abstract:
Does originalism, if faithfully followed, make a difference to constitutional reasoning and outcomes? That’s the topic of this Essay, delivered as the 2025 Dunwody Distinguished Lecture in Law. Early originalists promised to tie judges’ hands and tether us to the Founding. But as originalists’ focus switched from original intent to public meaning, critics said the theory was losing its distinctiveness and power to constrain. I revisit that critique in light of two developments: new elaborations of originalist theory, and the rise of a majority-originalist Supreme Court.
On the theoretical side, originalism still differs from rivals, but the contrasts are harder to theorize than before—harder to state in ways that are both general and informative. Above all, originalism can no longer boast a sweeping rejection of common law reasoning, which Justice Scalia had sold originalism entirely as a way of avoiding. The effort to avoid such reasoning is likely harmed, not helped, by academic originalists’ growing interest in original methods, original law, and general law. Remaining differences between academic originalism and its rivals tend to be (1) articulable but narrow (issue-specific), or (2) general but harder to express in concrete terms. Two less obvious examples of the latter: originalists tend to search history more intensely for evidence of original meaning, and they’re slower to call the historical evidence a draw and move on to other modalities.
By contrast, when it comes to “chambers originalism,” especially at the Supreme Court, there is a general and bright-line pattern. It’s not that the Court has replaced most non-originalist doctrines. It has done so on major issues, but it can’t feasibly do so across the board. Nor does the Court avoid all moral or policy reasoning. But it does consistently aim to avoid palpable moral reasoning. To avoid drawing obviously novel constitutional lines, the Court has over- and under-enforced constitutional norms, for example, or reached for historical tests without obvious links to original meaning. And this aim to avoid palpable moral reasoning has for several reasons affected rights cases more than separation of powers cases (an asymmetry in originalists’ concerns that runs right back to their earliest work).
The effort to avoid only palpable moral reasoning needn’t reflect dishonesty. It may just reflect the hard choices that it’s now clear originalists face, between fidelity to the Founders and constraint. Originalist scholars, who have the leisure to luxuriate in complex Founding-Era norms, have chosen that path. Meanwhile, perhaps judges have reached for whatever limits on judicial moralizing still seemed attainable.
Finally, I consider why this all matters and look ahead to how even the contrast between academic and chambers originalism might be in peril.
Posted at 6:02 AM