This Article argues that Originalism has achieved its intellectual respectability only at the necessary expense of its ballyhooed promise of constraint. The Article recounts the theoretical advances of the New Originalism and argues that the New Originalism is substantially more defensible than was the Old one and is much better positioned to answer the scholarly critiques that demolished its predecessor. The Article further explains that these benefits have, however, come at the cost of judicial constraint. By its very nature - and to a far greater degree than its proponents have tended to recognize - the New Originalism is a theory that affords massive discretion to judges in resolving contentious constitutional issues. The Article suggests that there is something unsustainable in the current state of affairs. Originalism gains it salience in the public discourse by its continued reliance on a promise to constrain judges; it is that promise that brings it lay respect. Yet, it gains academic respect only by foregoing that promise. Originalism now garners esteem from much of both the public and the academy, but only because the public and the academy are speaking of very different things when they refer to originalism. Originalism somehow continues to thrive as both a political movement and as a scholarly theory, even though the features that make it attractive as a political movement render it impotent as a scholarly theory and vice versa.
GW Paper Series
GWU Law School Public Law Research Paper No. 534; GWU Legal Studies Research Paper No. 534
Thomas B. Colby, The Sacrifice of the New Originalism, 99 Geo. L.J. 713 (2011).