Originalism and the Illusions of Objectivity
Law needs objectivity. If a legal system incorporates rules that are too subjective that system falls short of the goal of the legal enterprise. If the subjectivity becomes too pervasive, the result is actually not law at all, but its opposite: arbitrary power. This Article examines originalism’s entitlement to the status of an objective theory of law. It considers first what objectivity means in a legal context, then examines the two main claims of originalism (semantic and normative). After seeing why neither satisfies the test of objectivity, it evaluates recent efforts by originalist scholars to satisfy that test, efforts whose successes come about only at the cost of jettisoning originalism’s basic reliance on origin.
Cite as Timothy Sandefur, Originalism and the Illusions of Objectivity, 19 N.Y.U. J.L. & Liberty 100 (2025).