Document Type
Article
Abstract
With the conservative turn of the U.S. Supreme Court, originalism has become ascendant. This rise to preeminence should trouble the legal community because originalism is grounded on a naive understanding of the interpretative process. Once we wash away this naivety and delve more deeply into legislative interpretation, we see that originalism fails in three ways. First, here is recent empirical evidence that general meaning is rare and, as such, the original meaning required by the theory is unlikely to have existed. Second, originalism fails to take into account the Problem of Induction—that making generalized inferences from a limited dataset is inherently uncertain. As a result, there are an infinite number of interpretations of a term or phrase that are all consistent with the earlier texts relied upon but inconsistent with each other. Third, the originalist assumes that we can pick between these conflicting interpretations by understanding the viewpoint of the drafters. But, as a review of the historical record demonstrates, that is not possible due to the enormous gulf between the ethical values and scientific knowledge of ourselves and our predecessors. Thus, if the courts are to pick among the possible interpretations, they can only do so if they do what originalism forbids—use the court’s contemporary values. Which is a very self-contradictory thing to do.
Recommended Citation
Scott DeVito,
George Washington’s Teeth, Wittgenstein, and Two Gruesome Problems for Originalism,
47 U. Ark. Little Rock L. Rev. 1
(2024).
Available at: https://lawrepository.ualr.edu/lawreview/vol47/iss1/1
