Fordham Law Review Volume 82 Issue 2 Article 10 2013 Originalism, Vintage or Nouveau: “He Said, She Said” Law Tara Smith University of Texas at Austin Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Tara Smith, Originalism, Vintage or Nouveau: “He Said, She Said” Law, 82 Fordham L. Rev. 619 (2013). Available at: https://ir.lawnet.fordham.edu/flr/vol82/iss2/10 This Symposium is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact
[email protected]. ORIGINALISM, VINTAGE OR NOUVEAU: “HE SAID, SHE SAID” LAW Tara Smith* INTRODUCTION: AN OVERVIEW OF ORIGINALISM’S BASIC FAILURE I begin with a brief overview of originalism’s central failings. I then consider three lines of defense that help to explain its resilient appeal and proceed to critique those three lines of reasoning. Through its various incarnations, I contend, originalism is guilty of a fatal contradiction. Law represents coercion. A legal system governs by force; that is the tool that gives teeth to its rules. I say this not as an indictment of law or of government; it is simply a fact—a fact that is significant to the proper conduct of judicial review. A legal system also works by words, which state the authority that it does and does not possess and how its coercive power will be used.