Smith on Whether Originalism Is Bullshit @msmith750 @StMarys_Law

Michael L. Smith, St. Mary’s University School of Law, is publishing Is Originalism Bullshit? in volume 28 of the Lewis & Clark Law Review. Here is the abstract.

It’s finally time to answer the big question. This Article draws on the surprisingly robust literature examining the definition, essence, and significance of bullshit and evaluates whether originalist constitutional interpretation fits the bill. I begin with Harry Frankfurt’s definition of bullshit as utterances made in pursuit of the speaker’s goals without regard for their truth value. I also rely on alternate formulations, including bullshit as unclarifiable nonsense as well as contextual and audience-centric variations of bullshit.

While not all instances of originalism are bullshit, I identify those instances which are, and go on to demonstrate that originalism is uniquely prone to bullshit as a result of institutional demands on those involved in constitutional disputes. When interpreters engage in historical analysis for purposes other than determining the correct original public meaning or original intentions, they veer into bullshit territory. An attorney who argues from selective historical research or citations designed to support his client’s case or a judge who relies on what she suspects may be incomplete party submissions but which are enough to reach the desired outcome are both engaging in bullshit originalism.

Originalist bullshit is more likely in light of the Supreme Court urging parties to resolve complex historical questions with nothing more than party submissions, as well as originalists’ discounting of historians’ work. Ethical and institutional demands incentivize bullshitting—especially when these actors are working outside of their comfort zone by attempting to make arguments regarding historical meaning and tradition. Legal actors’ unfamiliarity with historical analysis also makes originalist bullshit harder to call out. This Article begins the task of calling out bullshit in originalist theory and practice. It also serves as a template for further work devoted to calling out bullshit elsewhere in the legal field.

Download the article from SSRN at the link.