Cass R. Sunstein (Harvard Law School; Harvard University – Harvard Kennedy School) has posted Originalism on SSRN. Here is the abstract:
Originalism might be defended on two very different grounds. The first is that it is in some sense mandatory – for example, that it follows from the very idea of interpretation, from having a written Constitution, or from the only legitimate justifications for judicial review. The second is that originalism is best on broadly consequentialist grounds. While the first kind of defense is not convincing, the second cannot be ruled off-limits. In an imaginable world, it is right; in our world, it is usually not. But in the context of impeachment, originalism is indeed best, because there are no helpful precedents or traditions with which to work, and because the original meaning is (at least) pretty good on the merits. These points are brought to bear on recent defenses of originalism; on conflicts between precedents and the original meaning; on conflicts between traditions and original meaning; and on nonoriginalist approaches, used shortly after ratification.
I agree that the second type of defense of originalism is more plausible than the first. But I would not say that it is linked a case-by-case (or issue-by-issue) assessment of originalism's good or bad consequences. Rather, the consequentialist assessment would need to be system-wide, linked for example to values such as the rule of law and separation of powers. If originalism is just something one uses when it helps get to a result that seems good for other reasons, then one is not really an originalist, just an opportunist.
Posted at 6:03 AM