Originalism As An “Ism”

Abstract

Outside the comfortable confines of the Federalist Society, originalism is far from fashionable. Indeed among constitutional law scholars at elite schools, the idea of being an originalist is tantamount to being some sort of intellectual Luddite. As Robert Bork discovered at his confirmation hearings, those who are originalists lack intellectual respectability. And, as Judge Bork noted subsequently, "[i]n the legal academies in particular, the philosophy of original understanding is usually viewed as thoroughly passe, probably reactionary, and certainly-the most dreaded indictment of all-'outside the mainstream.''' For this reason alone, particularly because so many Federalists are originalists, it seems to me to be a good idea to address the issue of originalism broadly rather than simply arguing that it produces desirable results in particular cases. The purpose of this Article is to accomplish two objectives. First, I want to make the point that despite the professed antipathy for originalism, originalism is not nearly as rare as one might think. Indeed, I will argue that the very constitutional scholars who decry originalism most loudly rush to use originalist arguments when they serve their purposes.