Article Title
Originalism: More Than Mere Foolishness or Fraud
Abstract
Over the last few decades, the Supreme Court has become increasingly divided along ideological lines, and the outcomes of controversial issues are often entirely dependent on whether the conservative or the liberal justices have a majority. When deciding difficult cases, Supreme Court Justices seem to have little common ground to serve as the basis of their decisions. There is frequently no agreed upon method for deciding the Constitutionality of actions, statutes, and lower court rulings. One method that could be part of the answer is originalism: the doctrine that states that the meaning of the Constitution is unchanging. However, originalism has many critics, which include prominent figures such as Justice William Brennan and Eric Segall. The goal of this paper is to defend originalism from attacks by these two opponents, namely, that originalism is either foolish or fraudulent. I contend that original meaning theory is a legitimate and often illuminating method of interpretation that has been successfully used in the past. I do this by laying out the cases against originalism, explaining how original meaning theory does not fall prey to Brennan’s attacks, and by directly responding Segall’s argument. I do not claim that original meaning theory is the entire solution to the sectarian problem plaguing the Supreme Court or that it can determine every Supreme Court case. But I do think that original meaning theory can provide part of the answer, and that we should not dismiss it based on arguments like the ones Justice Brennan and Segall assert.
Recommended Citation
Durham, Levi
(2020)
"Originalism: More Than Mere Foolishness or Fraud,"
Acta Cogitata: An Undergraduate Journal in Philosophy: Vol. 8, Article 7.
Available at:
https://commons.emich.edu/ac/vol8/iss1/7