What Would Clio Say? A Disciplinary View of Originalism

Abstract

This (conference) paper challenges the view that new ‘public meaning originalism’ can bring greater certainty to constitutional interpretation than old ‘original intent’ originalism. It explains why history is different from law, and why it is virtually impossible for history to assist constitutional interpretation. When originalists make a claim in the name of history, it argues, they are doing something else. Historians should resist the fantasy that their work can contribute to constitutional conclusions.

Keywords: Originalism, constitutional interpretation, history

JEL Classification: K10, K30