Zack Steigerwald Schnall (Harvard Law School) has posted The Compatibility of Substantive Canons and Originalism (139 Harvard Law Review 625 (2025)) on SSRN. Here is the abstract:
Judges and justices who describe themselves as originalists should neither develop nor apply certain substantive canons, including the major questions doctrine. Professor Michael Ramsey argues in a recent article that the judicial power permits the development of new substantive canons that underenforce statutes to protect a core Founding-era value. After evaluating Ramsey’s theory, this Note advances an alternative framework: a substantive canon must have both predated and survived ratification for its use to fall within the original meaning of the judicial power. The Constitution’s separation of powers placed a cap on judicial lawmaking and repudiated meta-lawmaking — the power to make rules that make laws. Already-developed canons, however, were presumptively incorporated into the judicial power, unless they were so vacuous as to permit unbounded lawmaking. Thus, while originalists on courts may comfortably apply most substantive canons that predate ratification, the development or application of any post-ratification canons exceeds the Article III judicial power.