Mootz and Hannah on The Strange Persistence of Originalism

Francis Joseph Mootz, III, McGeorge School of Law, and Mark Hannah, Arizona State University, have published The Strange Persistence of Originalism. Here is the abstract.

Originalism has positioned itself as the au courant doctrine of legal interpretation. Proponents argue that originalism is a core element of our democratic identity and should be adopted by every judge. The originalist tenet -- that the meaning of a legal text is the ordinary meaning the text had at the time of its enactment -- purportedly provides an objective basis for judging with integrity. Despite originalists’ grandiose claims, critics have lodged many well-reasoned objections that problematize originalists’ goals and methods. Why, then, has originalism gained such widespread prominence? In this article, we offer a rhetorical analysis that explains its ascendance and strange persistence. Our thesis is that originalists do not prevail primarily by persuading others through logic or dialectical reasoning (logos) or by promoting their audience’s disposition to hear their argument (pathos). Instead, originalists bring force to their claims by establishing and projecting an ethos. They draw on ethos when claiming to be principled legal advocates who are persons of good character and wisdom. However, ethos has a broader scope than the speaker’s reputation or character exhibited in an effort to persuade. Only by acknowledging this dimension of ethos can we explain how originalists have dominated recent jurisprudential debates.

Download the article from SSRN at the link.