Originalism is hard to do. It isn't a simple formula for churning out easy legal answers. But, argues @stephenesachs, it’s something just as important: a standard for which legal answers are the right ones. ➡️ https://t.co/TS0wVj4NlC pic.twitter.com/nLzcFd5lFi
— Harvard Law Review (@HarvLRev) January 10, 2022
"Originalism" as jurisprudence arises from a legal doctrine of statutory interpretation seldom invoked but valuable when needed. The doctrine is "legislative intent," an idea I barely remember from law school because it is so little used in legal practice or in appellate arguments (and I never did an appellate argument, so....). There are standards and elements involved, but it's the basic idea I'm interested in here.
Discerning legislative intent arises not from seeking a definitive explanation ("the right answer") to what a statute means or how it should be interpreted, but from seeking guidance so that the courts are not in the place of being a super-legislature. It is a doctrine of deference to the legislative branch (or Parliament; as I recall, the doctrine comes out of English common law; OCICBW) which the courts use to avoid the appearance of substituting their preferential application of the law for that of the legislature which passed the law. It seldom comes up except in cases where it's a close question whether the statute should be interpreted in one way, or in another; and the outcome hinges on which interpretation is "correct." So the courts can, in the final resort, look to legislative intent not for an answer, but for guidance (because really, how does one know "legislative intent"? Legislation, like Constitutional provisions, is the product of many hands and extensive argument and, finally, compromise. To establish a single, concrete intent, is impossible.)
The courts look to the legislative record: comments of legislators on the legislation prior to it becoming law, hearings on the bill, etc., trying to understand what the legislature intended when a determination of what the statue "says" can literally go either way on a point of law raised by the facts of a particular case. Legislative intent doesn't control the court's decision, but it can be a factor in making the argument for the court's decision. It is from this interpretive tool that "originalism" arises, because obviously there is no discernible "original intent" in a common law tort like battery or libel (although there may be in the codification of those torts into statutory law; but usually the intent there is only to make the common law the settled law of a state). The same doctrine is often applied in constitutional interpretation, where the "intent" of the "founders" is examined to throw light on what, say, the convoluted syntax of the 2nd Amendment means (ironically, Scalia's interpretation of that sentence is certainly original; but I don't think it would be recognized by the "original" writer of that sentence, or by the legislatures which ratified it).
So, while I didn't discuss it per se, "originalism" has a jurisprudential sheen to it. I hesitate to call it even a pedigree. But it has a context in the law. The problem is the premise behind it renders it absolutely useless to the law, or to any other application. It's a reaction to judicial interpretation from the Warren court as much as fundamentalism in religion is a reaction to 19th century Biblical scholarship (Christianity) or the 20th century world (Islam, primarily).
It is, as I said before, crap.
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