Paper Title: Have We Always Been Originalists?

Abstract: The debate over originalism has taken a “positive turn.” Many originalists today seek to avoid seemingly unresolvable normative debates by proposing a new empirical claim: Our law is originalist, and always has been. This claim has grown influential, yet there has been no systematic empirical study of its merit. This Article takes the first step in that direction. It treats the text of Supreme Court decisions as data, examining the extent of the Supreme Court’s originalism over time using sources central to originalist methodology, as defined by originalists themselves.

Our empirical study reveals that, contrary to positivists’ claims, the Court has not always been originalist. Originalism is a distinctly modern phenomenon, and even today the Court’s practice is complex, sometimes reflecting elements of originalism and sometimes reflecting competing interpretive theories. We support this claim based on a new dataset that we built from seven different sources, including the text of every Supreme Court decision since 1791. Our conclusions are confirmed with a novel examination of Supreme Court briefs, oral argument transcripts, and other official records, which reflect the practices of the Supreme Court bar. These results call into question strong positivist claims about the historical constancy of originalism, while carrying practical implications for today’s judges.

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Michigan's Law and Economics Workshop provides an opportunity for faculty and students from across the University to engage with cutting-edge law and economics research by leading scholars on a wide range of legal and policy topics.

The Winter 2023 workshop meets on Thursdays from 4:30-6:30 p.m. All workshops occur in person in Jeffries Hall 1025 and are open to the academic community from the University of Michigan and elsewhere.

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