Thinking About Originalism‪.‬

If the Federalist Society is associated with a single word, it is "originalism." Although well-known for its noble efforts to encourage freedom of thought and debate in law schools (and among lawyers), the Society's own thoughts and debates have revolved primarily around originalism; and the Society is probably best known for its members' embrace, propagation, and defense of that concept. In a Federalist Society symposium, Chief Judge Frank Easterbrook once proposed that the opponents of originalism be called "inventionists." (1) The neologism did not catch on, alas. But didn't "originalism" itself have to be invented? It is not a term used by the framers and ratifiers of the United States Constitution, for example, though they knew of course its source words (origin, original, and so on). Those words denote two rather different things: an "original" is closest to the origin (the words were once synonyms), the first of its kind, the oldest example (and thus distinguished from later copies); but to be "original" is also to be new, pathbreaking, creative (and thus not a copy of anything previous). An original can be old or new. As the doctrine defended today by the Federalist Society and by American conservatives in general, originalism is a new term for fidelity to something old, namely, the Constitution.