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Florida Law Review

Abstract

Is originalism the law today? Because judicial opinions are an important part of how we know the law, it is important exactly what makes a judicial opinion originalist. Lower courts interpreting the opinions of a higher court lack the power to smooth out inconsistencies, fill in assumptions about what is really motivating the higher court, or dismiss stated rationales that conflict with what those lower courts take to be the facts. If, then, we assess opinions the way lower courts must assess them—i.e., on the basis of their texts—the only proper criterion to govern whether an opinion is originalist is simply whether the face of the opinion endorses originalism as a proposition. Originalism is not a citation practice, or a set of proper outcomes, or a motivating virtue, but a proposition: the thesis that the meaning expressed by the constitutional text, in its original context, whenever that meaning is sufficiently clearly known, is binding on those whose jobs involve constitutional interpretation.

Opinions that endorse the bindingness of sufficiently clear original meaning count as originalist; opinions that repudiate it count as anti-originalist; most opinions are neither. Examples of originalist opinions from all fifty states, from the Founding and from today, as well as originalist opinions joined or authored by Justices such as Oliver Wendell Holmes, Jr., Louis Brandeis, William Brennan, and John Paul Stevens, are not hard to find. Explicitly anti-originalist opinions stating or implying that even perfectly clear original meaning can be overridden in light of policy or precedent are much rarer, though there are a few opinions that can be interpreted that way. The most celebrated supposed departures from original meaning by the Court, however—Brown v. Board of Education, Roe v. Wade, and Obergefell v. Hodges—contain no such statements. Explicit endorsement or condemnation of originalism as a proposition is a better standard for the scope of an “originalist opinion” or an “anti-originalist opinion” than a focus on (1) embrace or rejection of the term “originalism” or its cognates, (2) practices of citing the Founders, (3) judicial motivations, or (4) whether an opinion gets original meaning right. All of these criteria for an opinion to be originalist or anti-originalist have clear counterexamples, both as to necessity and sufficiency.

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