Michael L. Smith (University of Idaho College of Law) has posted Abandoning Original Meaning (Albany Law Review, Vol. 36, 2023 (Forthcoming)) on SSRN. Here is the abstract:
In the high profile, politically salient cases of New York State Rifle and Pistol Association, Inc. v. Bruen, Dobbs v. Jackson Women’s Health Organization, and Kennedy v. Bremerton School District, the Supreme Court had the opportunity to take an originalist approach to the Constitution and interpret it based on its original public meaning. The Supreme Court declined to do so. Instead, the Court began and ended its analysis with an investigation of history and tradition, with virtually no discussion of the Constitution’s meaning.
The Court’s opinions in Bruen, Dobbs, and Kennedy reveal a severe disconnect between originalist theory and judicial practice. Academic originalists frequently couch their theories in terms of what the Court has done or is expected to do. They present originalism to political and public audiences, claiming that particular Justices are originalists, predicting case outcomes, and critiquing judicial opinions based on their theory of originalism. Originalists must reckon with the fact that when it came time for the Court to issue its most crucial opinions, the Court not only refused to consider their work, but it refused to even consider the field of constitutional interpretation that they have spent decades developing.
This Article further addresses how critics of the Court may use the Court’s abandonment of original public meaning to amplify particular critiques of the Court and highlight the politicization of judicial decision making. These critics, however, should not attempt to argue against the Court on its own terms, as the ambiguous and undefined nature of the Court’s history and tradition approach gives the Court discretion to shape the rules of any dispute to favor the desired outcomes of the Court’s conservative majority.
There is much in this article with which I agree.
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