« Originalism in the Blogs
Michael Ramsey
| Main | More on Originalism and Social Security
Michael Ramsey
»

09/26/2011

Daniel Hornal: Why the Demands of Formalism Will Prevent New Originalism From Furthering Conservative Political Goals
Michael Ramsey

Daniel Hornal (J.D. candidate, Georgetown University Law Center) has posted Why the Demands of Formalism Will Prevent New Originalism From Furthering Conservative Political Goals on SSRN. Here is the abstract:

Proponents of New Originalism propose that their modifications solve the indeterminacy and predictability problems inherent in early conceptions of originalism. This paper argues that excluding extrinsic evidence and relying only on the formal implications of the text merely switches one indeterminacy and predictability problem for another. Rules inherently carry implications unknown to rule writers. In the case of open-textured rules such as those in the Constitution, a broad reading can occupy whole fields of law, whereas a narrow reading can have almost no real-world effects. Because they must ignore extrinsic evidence, new originalists are almost unbound in their choice of interpretation. Thus, a new originalist critique cannot make meaningful claims about how a case should have come out. This casts serious doubt on the legitimacy of new originalism as a conservative theory of interpretation, because rule writers now have no bulwark to protect against unthinkable progressive interpretations of their rules. If rule writers cannot even predict the effects of their rules under new originalism, let alone control those effects, new originalists cannot credibly claim the predictability or legitimacy-enhancing advantages claimed by proponents of early conceptions of originalism.

I haven't read the paper as yet, but I have some doubts based on the abstract.  I'm not aware of any "new originalist" (or, really, any kind of originalist) who advocates (as the abstract says) "excluding extrinsic evidence and relying only on the formal implications of the text."  Somewhat overgeneralizing, "new originalism" looks to the original public meaning of the text, which is an approach much more focused on the text than prior iterations.  And within "new originalism" there is a range of views about how the meaning that appears from the words (giving them what appears to be their most common original definition) should be weighed relative to extrinsic evidence that people of the time actually understood the words differently.  But the text-only approach seems a bit of a misconception.