San Diego Law Review
Document Type
Article
Abstract
Predicting the Supreme Court’s next turn is tricky business. The two obstruction-of-justice cases considered here may turn out to be what used to be called “sports,” i.e., cases where the Court used a mode of analysis that it abandons in future cases without explanation. Perhaps, though, these cases hold the promise of a new, more open frontier of judicial interpretation in the service of our self-governing spirit. One in which courts and the parties to litigation cooperatively seek to advance legislative purposes to better our society.
Part II traces the development of originalism, a textualist approach to legal interpretation arising out of perceived overreaching by mid-twentieth- century courts. After summarizing constitutional and statutory court decisions interpreting the law using non-textual methods, Part II explores the originalist response from Robert Bork’s original legislative-intent-based interpretative method through semantic originalism’s search for original public meaning.
Part II explains that semantic originalism achieved purity in an interpretive method at the expense of, for lack of a more precise phrase, democratic principles. An objective contemporary reader’s understanding of a law’s text can be described as the only legitimate binding law because legislators have a duty to communicate the laws that they enact. But if objective readers would misunderstand the legislature’s purpose, semantic originalism would nonetheless require a court to enforce that misunderstanding, rather than the intentions of those democratically elected to create the law. One might say that semantic originalists ingeniously preserved the law’s integrity at the cost of its soul.
Part III examines the methods the Court applied in Pugin and Fischer, showing how each, to varying degrees, pushes toward a search for congressional purpose, rather than original public meaning, through techniques that empower judges to use common sense and logic¾fully imbued with modern understanding¾to determine how a statute should apply.
Part IV explores the dual American commitment to both a Rule of Law and an ongoing spirit of self-governance. It argues that the common view that legal interpretation deals exclusively with the Rule of Law while the political branches provide space for self-determination misunderstands the American ideal and conflicts with the nature of contemporary political processes. The Court’s approach in the obstruction-of-justice cases evinces the need for legal interpretation to embody both a fealty to a fixed meaning communicated through text and a self-determining spirit that can manifest through litigation drawing on the purpose for which a law was created. This interpretive approach does not empower judges to make law. Rather, judges are the tool through which the People, as litigants, engage in a self-determinative process of ascertaining how a lawmaker’s purpose can be mined to make our law fit modern society.
Recommended Citation
Steven Semeraro,
We Were All Originalists . . . For a Minute: Has the Supreme Court Abandoned the Search for Original Public Meaning? Should It?,
62
San Diego L. Rev.
1
(2025).
Available at:
https://digital.sandiego.edu/sdlr/vol62/iss1/2
