Lowering the Bar Exam Questions

Is Originalism Bullshit?

The most important subject of our time

This is the question posed and extensively discussed in a forthcoming law-review article that I saw announced the other day on Twitter. See Michael L. Smith, “Is Originalism Bullshit?” 28 Lewis & Clark L. Rev. (forthcoming 2025). Have I read all of it? By no means. But I have read more than enough to commend it to you.

This is not the first time I’ve commended Smith’s writing, and this should be no surprise, given that he clearly enjoys writing about ridiculous subjects. SeeIs It Legal to Shoot Fish With a Gun?” (Apr. 14, 2021) (discussing Smith’s 2020 article, “Shooting Fish”). At that time, Smith was an associate at a law firm in Los Angeles, but since then he has apparently come to his senses and become a law professor. Thankfully that still leaves him time to crank out stuff like this, which like the fish-shooting article is both entertaining and interesting.

“Originalism,” to quote originalist Steven G. Calabresi, “is a theory of the interpretation of legal texts, including [but generally meaning] the text of the [U.S.] Constitution.” According to this theory, “the constitutional text ought to be given the original public meaning that it would have had at the time that it became law.” Others believe that what matters are the words themselves, even though the meaning of words or phrases can change over time. For example, if arguing about the “right to bear arms,” an originalist might point to evidence that in 1783, this meant being part of an organized militia that could be called up to defend the state if necessary, but a non-originalist might argue it just means carrying guns around.

Still others might say, “hey, both of you guys are just coming up with arguments to justify the result you like, not really applying a coherent theory that yields consistent results.”

I will just pause here to randomly mention that Calabresi, who is co-founder of the Federalist Society, first opposed the impeachment of Donald Trump and then supported it, and more recently took the position that the insurrection disqualified Trump from holding office, before deciding a month later that no it didn’t. He would not support Trump in the 2024 election, he said then, but recently he called Trump’s New York trial “an unjust political act rivaled only in American politics by the killing of Alexander Hamilton by Aaron Burr,” so maybe he’s rethinking that too? Well, it’s hard to tell what words mean sometimes.

More to the point here, sometimes the people using them don’t care what they mean, or at least don’t care whether they’re true or false. And that is what we usually mean by “bullshit,” according to Prof. Harry Frankfurt, who wrote a terrific little treatise on the issue. A “bullshit” statement is often false, but not necessarily; what makes it bullshit is that the speaker doesn’t care. He has some motive for saying the words other than convincing people with their truth. We all do this to some degree, but some more than others. And some apparently cannot do anything else. Is bullshitting worse than lying? Frankfurt thought so, and at least one judge has agreed. See, e.g., “Sentence Enhancement Imposed for Bullshit” (July 27, 2005). Because “generative AI” is essentially a highly advanced bullshit generator—it neither knows nor cares whether what it’s telling you is true—look for many more opinions on this in the future.

Anyway, I am much more interested in the phenomenon of bullshit than in originalism, so I especially commend to you the first 16 pages of Smith’s forthcoming article, which cover the former topic. The answer to the headline question, of course, is “it depends,” but this article is an entertaining discussion of why that’s true.