![handle is hein.journals/rgsusty76 and id is 1 raw text is:
NEGATIVE ORIGINALISM
Jamie G. McWilliam*
INTRODUCTION: A CRITIQUE OF ORIGINALISM ..............................................1
ORIGINALISM AS A THEORY OF NOT LYING ...................................................2
NEGATIVE ORIGINALISM................................................................................5
CONCLUSION..................................................................................................8
INTRODUCTION: A CRITIQUE OF ORIGINALISM
Originalism has been criticized for failing to provide a determinate
meaning in every instance of interpretation.1 To these commentators,
originalism is at best a flawed methodology in which diverging historical
sources are inconsistently applied by judges and scholars who cannot
even agree at what level of generality the original meaning should be
viewed. Some even go so far as to argue that original meaning is, at worst,
illusory, and allows originalism to be turned into, in effect, a form of
progressive and very much living constitutionalism.2 In other words,
they say originalism, which was spawned as a cogent theory3 to counter
the Warren Court's flexible use of the Constitution, is a fraud.
* J.D., Harvard Law School, 2022. B.S., Montana State University, 2018. The
author would like to acknowledge the aid received during the drafting of this article, in
the form of advice, background knowledge, comments, and suggestions. Specifically, the
author would like to thank Ashley Vaughan, Catherine McWilliam, Charles McWilliam,
and the editors of the Rutgers University Law Review for their indispensable work in
finalizing this article. All views and errors are the author's own, and do not reflect those
of any of the aforementioned people or any of the author's current or past employers.
1. See Martin H. Redish & Matthew B. Arnould, Judicial Review, Constitutional
Interpretation, and the Democratic Dilemma: Proposing a Controlled ActivismAlternative,
64 FLA. L. REV. 1485, 1502 ([W]hen reasonable people disagree over the fundamental
original meaning of a text based on identical historical source materials, the value of
originalism as a means of authoritatively determining constitutional meaning becomes
highly questionable.); see also William G. Merkel, The District of Columbia v. Heller and
Antonin Scalia's Perverse Sense of Originalism, 13 LEWIS & CLARK L. REV. 349, 349 (2009)
(describing originalism as an effort to pin point a single original understanding when in
fact meaning was hotly contested at the time constitutional text was created); Bret Boyce,
The Magic Mirror of Original Meaning: Recent Approaches to the Fourteenth Amendment,
66 MAINE L. REV. 29, 86 (2013) ('Indeed, the quest for a single 'original meaning' is a
misguided one.).
2. ADRIAN VERMEULE, COMMON GOOD CONSTITUTIONALISM 116 (2022).
3. There are diverging views as to whether originalism was practiced implicitly prior
to its rise as a named theory. That debate is beyond the scope of this essay.
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