A while back I did a bunch of posts on the relationship between positivism and originalism. At the time, I also planned on doing a post on Dworkinian theory and originalism, but never got around to it. I am finally doing the post.
Dworkin favored an interpretive theory of law that attempted to interpret or give an account of a legal practice by considering the criteria of fit and justification. Under this view, one would first consider the actual legal practice – in the constitutional area, the actual Constitution and the judicial (and other) decisions interpreting it. One would seek a constitutional interpretation that “fits” with these legal materials – that is consistent with the practice. But one would also seek a constitutional interpretation that is justified – that renders the actual practice to be the best that it can be on normative grounds. The overall best interpretation would be based on both fit and justification.
Under these criteria, I believe there is a strong argument for originalism – especially the type of originalism that John McGinnis and I have developed. This type of originalism is both attractive normatively and does a reasonable job of fitting the practice.