Is Originalism Our Law?

William Baude


At her confirmation hearing, Supreme Court Justice Elena Kagan said that "we are all originalists." Is that true, and what would it mean for it to be true? In Is Originalism Our Law?, I argue that there is an important sense in which Justice Kagan was right. And if originalism is our law, it provides a new and better explanation for why judges today are bound to follow the decisions of the framers.