Ethics and Originalism

This Article addresses a blind spot in the theorizing and debate over originalist interpretation: the implications of rules of legal ethics. For the few originalist theorists who take the practical side of originalism seriously, attorneys’ rules of professional conduct are almost entirely absent from the discussion. These rules bind all attorneys who, in turn, construct the record, present the evidence, and make the arguments upon which judges and Justices rely. And these rules have profound, though mixed, implications for originalist theory.

Some ethical duties—such as those requiring attorney competence and candor to the tribunal—might enhance the quality of originalist analysis if taken seriously. But others—particularly attorneys’ duty to provide diligent, zealous representation of their clients’ interests—are inconsistent with originalist ideals of rigorous investigation into the Constitution’s original meaning. This Article identifies rules of professional conduct that bear on originalist analysis, explores these rules’ mixed implications for originalism’s feasibility in practice, and urges that attorneys and courts pay greater attention to how rules of professional conduct might be leveraged to improve originalist analysis or to inform decisions to avoid the method altogether.