The Three Steps Required for Originalist Interpretation: How Distortions Appear at Each Stage

Authors

Crump, David

Abstract

Originalism is often the most satisfactory method of interpreting texts. But originalism is only one of a number of modalities of interpretation, all of which have to be kept in mind. Sometimes originalism is not the best method of reading a text. Originalist interpretation requires three distinct steps. First, a court must determine that originalism is the preferred method of finding meaning in the text at issue. This decision can create problems if originalism is actually not the method the court plans to use even though the court has said so. And sometimes the court may decide in the midst of the process to use parts of another method. The second step is to find the original meaning. Here, the problem is that there are many sources one can consult to find this meaning, ranging from those close to the time of the event to those spread over time. Finally, the third step is to fit the original meaning to the different circumstances of today. Sometimes, this step receives only casual treatment, perhaps because the court has already slogged through the hard work inherent in the first two steps and implicitly finds this accomplishment enough. Sometimes the differences are so great that originalism cannot reliably be used. The only way to deal with these problems is for the court to try its way through the process, retaining an awareness of the difficulties in each step and the possibility of their cumulating.

Recommended Citation

Crump, David, The Three Steps Required for Originalist Interpretation: How Distortions Appear at Each Stage, 61 Santa Clara L. Rev. 353 (2021).
Available at: https://digitalcommons.law.scu.edu/lawreview/vol61/iss2/1