A Defense of "Old Originalism"

The law review published by my alma mater, known aptly enough as the Western New England Law Review, has just published a theoretical article by Walter Benn Michaels, called "A Defense of Old Originalism."

Michaels is a professor of American Literature and Literary Theory at the University of Illinois, in Chicago. It isn't unusual for a literary scholar to turn his hermeneutical attention to the reading of legal texts -- Stanley Fish more famously followed the same career path -- and the results here are intriguing. A good "get" for WNELR.

As the title of Benn's article indicates, he distinguishes between two ideas in the law -- U.S. constitutional law especially -- which he calls "old" and "new" originalism.

Justice Scalia advocates what Benn calls the "new" originalism, which Benn means to criticize (he also means to criticize, though only implicitly in this article, the wide range of non-originalist theories). Scalia says that he is not interested in what the framers of a statute, or constitutional provision, meant. He is unconcerned, that is, with private significance inside their skull. He concerned with what they said, and with what was the public significance at the time they said it of the words they used.

We divine the meaning of the term "cruel" in the prohibition against cruel and unusual tortures, then, not so much from anything the wielders of the relevant quills may have said they meant but from the dictionaries of the era, the "public and objective rules of the language."

Benn considers this position untenable, and wants to return to a more frankly subjectivist notion of originalism. I will leave you to discover the particulars of his case from him.