California Western Law Review
In his article, Originalism: Standard and Procedure, Professor Stephen E. Sachs describes a never-ending debate between originalism's advocates and critics. Originalists argue that certain historical facts determine the Constitution's meaning. But determining these facts is difficult, if not impossible for judges, attorneys, and the public. Sachs seeks to rise above this debate, arguing that the legal community should not expect originalism to offer a procedure for interpreting the Constitution. Instead, the legal community should treat originalism as a
standard to judge interpretations.
This Article takes issue with this approach. Originalism is not like other instances in law where statutes or opinions refer to other opinions, statutes, or third-party publications. Instead, originalism requires rigorous and complex analysis of historical facts to determine the Constitution's original public meaning-an undertaking that most judges, attorneys, the public, and even legal academics may find challenging. Treating originalism as a standard does not avoid this concern, and originalism therefore remains unappealing when compared with alternate approaches to interpretation that do offer procedures for their implementation. Regardless, the legal community should confront these issues, rather than evade them.
Michael L. Smith, Originalism and the Inseparability of Decision Procedures from Interpretive Standards, 58 Cal. W. L. Rev. 273 (2022).