Tara A. Smith (University of Texas at Austin — Department of Philosophy) has posted Originalism's Misplaced Fidelity: 'Original' Meaning is Not Objective (Constitutional Commentary, Vol. 26, p. 1, Fall 2009) on SSRN. Here is the abstract:
Public Understanding Originalism has enjoyed resurgent respect in the past few years, increasingly embraced by scholars from across the ideological spectrum. Its appeal stems from its apparent ability to provide an objective basis for applying the law, overcoming the subjectivism of Original Intent Originalism and the naivete about language in Textualist Originalism. Public Understanding Originalism’s current prestige is thanks in large part to vigorous defenses from Keith Whittington and Randy Barnett, which argue for its unique ability to give faithful effect to the will of the people and to respect the written character of our constitution.
This paper examines these two arguments. Neither vindicates the Originalist conclusion. The Originalists’ understanding of “original” meaning reveals a failure to recognize the conceptual nature of language and the open-ended nature of concepts. Indeed, because it fails to appreciate what objective meaning is, Public Understanding Originalism collapses into the very subjectivism that it seeks to oppose.
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