William & Mary Bill of Rights Journal
Abstract
Despite the vast body of theoretical work produced by originalist scholars, this literature fails to address how practicing judges and attorneys should apply originalist theories. All too often, academic originalists appear to write for an audience of other originalist scholars. This results in lengthy, technical, and heavily theoretical discussions. The question of how courts and judges are to apply these increasingly technical and theoretical originalist methods is left by the wayside. All too often, judges and attorneys cherry-pick from this body of scholarship to create a veneer of academic legitimacy for their own goal-oriented arguments.
We do not seek to bridge this gap in the originalist literature or to cast aspersions on the reasons for its uptake in legal practice. Instead, we argue that originalism is difficult, if not impossible, to implement—at least in cases where a theory of interpretation matters. By demonstrating that originalism is more of an academic phenomenon than a guide for legal practice, we cast serious doubt on judicial and political treatment of originalism which tends to frame originalism as a method, if not the method, that judges should employ when interpreting the Constitution.
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We do not propose solutions for implementing originalism. Indeed, we have little hope that originalists will succeed in solving the problem of implementation should they finally decide to devote the necessary time and effort to confront this issue. We hope that this Article will prompt originalists to at least attempt to take the practice—not just the theory—of originalism seriously. Should originalists fail to rise to this challenge, academic originalism will remain little more than an abstract, theoretical exercise that is fatally disconnected from the practice of law. In such a case, originalism’s supporters, including judges and politicians, will need to acknowledge that originalism in practice lacks the rigor and nuance of originalism as theorized.
This abstract has been adapted from the authors' introduction.