Read on Twitter
My hot take for the evening: yes, originalism collapses into incoherence under very little scrutiny, but it is still the most plausible theory of legal interpretation. This is because a a legal hermeneutic must satisfy two desiderata beyond what an academic hermeneutic must do.
Nothing of consequence rests on purely academic interpretation, except in a very removed sense. A great deal of consequence rests on legal interpretation. This means that a theory of legal interpretation must be able to generate timely and consistent answers to novel questions.
Originalism often fails to do this. But it is not enough to merely critique existing decisions, because a jurist is in the position of needing to settle a pressing question. Originalism does in fact impute a philosophically difficult notion of "intentionality" to collectives...
...but to point out the philosophical difficulties in one system is not helpful to the jurist if nothing more precise is proposed to replace it. Originalism at least has the advantage that in theory, there might be "correct" answers to interpretive problems.
But the second desideratum that a theory of legal interpretation must provide is legitimacy. There are other theories that could, I suppose, generate timely answers to novel problems. We might, for instance, say that the will of the judge is law, pure and simple.
But originalists are correct to note that in a democracy, the legitimacy of judicial decisions rests on the idea that the judges are not imposing their will upon the populace, but rather merely applying laws already passed by a majority. To point out that originalism...
...is rarely neutral in this sense is true, but it at least provides a "common-sense" explanation for how judicial decisions *might* be applied neutrally. An alternative is only as good as its ability to root legitimacy in something other than the will of the judge.
Here's the kicker: critics can rightly point out that even if decisions could be arrived at "neutrally," they might often lack legitimacy if the will of the people is something different. So then legitimacy is in some sense directly related to the *ongoing* will of the people...
...and not merely the *enacted* will of the people. But if this is the basis for legitimacy in a democracy (and frankly, I think it is), then we should be honest about the conclusion: this view should incline us to say that *judicial review as such* is illegitimate.
The point here is that *if* judicial review is accepted as a legitimate institution, it is hard for me to see how originalism is not the best mode of conducting it. The legitimacy problems posed by originalism (which are very real) cannot be solved...
...by merely swapping out one theory of legal interpretation for another, without altering the power that legal interpretation holds in our society. In my view, the legitimacy problem is only solved by changing institutions, not the philosophies of people within them. /FIN
