Abstract
Inspired by the 2024 Childress Lecture, this essay considers originalism in two distinct guises: first, as a method of constitutional interpretation and then, as a politically-coded signal used to ensure predictability of judicial behavior. Regarding interpretation, the essay critiques originalism and its claim as a determinative source of constitutional understanding as a violation of the oft-overlooked chronological separation of powers embedded in the Constitution. Though originalism is often styled as a way of checking the power of judges, it threatens to impose a tyranny of the past that runs counter to a constitutional structure built upon the diffusion of power. However, in the twenty-first century, originalism has become more than an interpretive tool. With the elevated stakes of modern judicial appointments, originalism has taken on a new form, rooted in political resistance to particular cases, such as Brown and Roe, as a signal that judges will arrive at predictable constitutional conclusions. The essay argues that both originalism the interpretive method and originalism the political signaling tool distort modern constitutional interpretation.
Recommended Citation
Daniel Kiel,
Originalism and the Chronological Separation of Powers,
69
St. Louis U. L.J.
(2025).
Available at:
https://scholarship.law.slu.edu/lj/vol69/iss4/6