Hylton on Originalism, Official History, and Perspectives versus Methodologies @BU_Law

Keith N. Hylton, Boston University School of Law, has published Originalism, Official History, and Perspectives versus Methodologies as Boston Univ. School of Law Research Paper No. 23-34. Here is the abstract.

This paper addresses a well-worn topic: originalism, the theory that judges should interpret the Constitution in a manner consistent with the intent of its framers. I am interested in the real-world effects of originalism. The primary effect advanced by originalists is the tendency of the approach to constrain the discretion of judges. However, another effect of originalism that I identify is the creation of official histories, a practice that imposes a hidden tax on society. Another question I consider is whether originalism should be considered a methodology of analyzing the law or a perspective on the law. I argue that originalism is closer to a perspective than a methodology.

Download the article from SSRN at the link.