The Ethos of Originalism

Despite widespread and well-reasoned objections to its methods, originalism has gained widespread prominence as the au courant doctrine of legal interpretation. This chapter offers a rhetorical analysis of originalism's ethos - namely its communal indwelling rooted in rule of law and American democratic values - to explain its strange persistence as well as provide a critical starting point for developing effective critical interventions in future jurisprudential debates about the merits of originalism as a theory of legal meaning. Drawing from Martin Heidegger's theorizing of ethos, the chapter reconceptualizes ethos and recovers its full meaning beyond good character and wisdom. The chapter situates this full meaning within the emergence of modern originalism as represented in the work of Professor Raoul Berger and then traces the meaning's evolution through the work of Justice Antonin Scalia and Professor Larry Solum, who both rely on the ethos of indwelling to overcome originalism's deficiencies rather than their perceived ethos of personal character and effective reasoning. The chapter demonstrates that it was Berger, Scalia, and Solum's ability to connect their work to a deep-seated shared sense of communal identity that enabled them to secure a place of pride for originalism in jurisprudential debates.