The original
by Catherine Deyarmond
An unusually named law review article on originalism by a St. Mary’s University School of Law faculty member has raised some academic eyebrows, drawing interest from law scholars, media members and social media followers across the country.
Earlier this year, Michael Smith, J.D., St. Mary’s Assistant Professor of Law, submitted his article, Is Originalism Bullsh**?, and soon received word it was accepted by the Lewis & Clark Law Review.
Originalism is an interpretation of a constitution, especially the U.S. Constitution, that aims to follow how it would have been understood at the time it was written.
“I enjoy writing, and I think it is important,” he said, adding this article has garnered the greatest attention and downloads thus far of his writing. “I like becoming part of the broader conversation.”
Albert Kauffman, J.D., a St. Mary’s Professor of Law with expertise on civil rights and the U.S. Supreme Court, said Smith’s article “exposed me to a new body of literature.”
“Michael made his points in a very interesting way that keeps your attention,” Kauffman said. “He is a great asset to our school.”
Smith joined the St. Mary’s Law faculty in August 2023, teaching and conducting research in criminal law and criminal procedure. He previously worked at the University of Idaho College of Law and as a civil
litigation attorney.
“Michael made his points in a very interesting way that keeps your attention. He is a great asset to our school.”
— Albert Kauffman, J.D., St. Mary’s Professor of Law
He also enjoys studying constitutional law, including constitutional interpretation, originalism and state constitutional law. Smith’s work has appeared in the Brooklyn Law Review, Pepperdine Law Review, Penn State Law Review and the Harvard Journal on Legislation.
This latest work on originalism is an extension of his area of focus since 2021. He said the idea for the latest article came “from studying philosophy as an undergraduate and becoming interested in free will and moral responsibility.” From there, he discovered the work of American philosopher Harry Frankfurt, who wrote a classic essay that became a best-selling book titled, On Bullsh**.
Still wondering what Smith’s article is all about? The abstract says it all.
“This article draws on the surprisingly robust literature examining the definition, essence and significance of bullsh** and evaluates whether originalist constitutional interpretation fits the bill,” Smith said. “I begin with Harry Frankfurt’s definition of bullsh** as utterances made in pursuit of the speaker’s goals without regard for their truth value.”
On Page One, Smith poses the question, “Is Originalism Bullsh**?” and answers affirmatively. Smith said he wanted to write in a way that drew attention so it would appeal to a wider audience.
“I thought it would be a fun little essay,” he said. “Famous last words. It turned out to be a full-fledged article.”
And an original one at that. ■
Editor’s note: Asterisks have been used to replace two letters in the profanity for inclusion in this magazine.
