These are the best of times and the worst of times for originalism. On the positive side, originalism has never been so discussed in the legal academy and, in the modern era, never have originalist arguments been taken so seriously on the Supreme Court. On the negative side, originalism has never been so fragmented with so many competing justifications and such fundamental differences in the methods for ascertaining the meaning of particular provisions of the Constitution. And, as Steve Smith, has written in these pages, some originalists believe that the judiciary has such a large role to play in choosing how to make operational constitutional provisions deemed radically indeterminate that originalism seems no longer to create any restraints on the judiciary—one of its original, and, in Steve’s view, salutary functions.
Some of the current discontents of originalism may be an inevitable consequence of its success. Academics do not succeed by parroting the old theories, but by minting new ones: the multiplication of justifications and methodologies for originalism is the inevitable result. But this academic economy of theorizing does not mean that originalism has not greatly been greatly enriched from being pushed and pulled by ambitious professors of varying ideologies. The most salient questions about both the persuasiveness of originalism and its practice are clearer than they were in the days when it functioned as a theory of judicial restraint. And despite the differences among originalists, originalists of various views are far less likely to talk past one another than were constitutional theorists of the past who began from utterly incompatible premises.
Over the weekend, I met with group of mostly young academics to talk about some of the internal debates within originalism. What I heard would have cheered Steve Smith.