A Conclusion in Search of a History to Support It



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Texas Tech Law Review Journal


In this essay, I address the issue of originalism's legitimacy as an interpretive theory by addressing two specific issues. First, I use essays written by two prominent originalists to demonstrate that Justice Scalia, by any measure the most important proponent of this theory, is not himself an originalist. This conclusion alone does not necessarily discredit the theory, but it supplies strong evidence of originalism's true nature as a tool for winning arguments. Second, I compare the historical arguments employed by Justice Souter in a recent search and seizure opinion with Professor Davies' detailed critique challenging the validity of the Court's historical analysis in that case. This critique attempts to demonstrate that originalism generally does not and cannot solve answer-specific, twenty-first century problems arising under ambiguous eighteenth century texts. It argues that originalism's deficiencies are not linked to a particular ideology. In the Fourth Amendment context, for example, its use by those advocating greater government authority and by those favoring greater restrictions on that power is flawed for the same reasons. Both sides in that debate continue to deploy it-not because originalism leads to historical truth, but in the hopes that it will help them prevail in constitutional disputes.



Originalism, Justice Antonin Scalia, Randy Barnett, Taft Lecture, Constitutional interpretation, Atwater v. Lago Vista


43 Tex Tech L Rev 29