At Dorf on Law, Eric Segall: Legal Realist Originalism? From the introduction:
Earlier this year, Professor Will Baude of the University of Chicago published an essay in the Columbia Law Review titled "Is Originalism Our Law?". He argued that landmark Supreme Court cases such as Home Bldg. & Loan Ass'n v. Blaisdell, Brown v. Board of Education, and Obergefell v. Hodges, which virtually the entire world views as examples of either living constitutionalism, or the pluralistic/common law descriptive theories of David Strauss and Mike Dorf, are actually originalist as written.
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In essence, Baude argues that, as long as the Court uses a mode of interpretation that the people alive in 1787 would have recognized as legitimate, the Court is using what he calls “inclusive originalism.” He claims that those folks understood that “fixed texts can harness what seem to be changing meanings. Though the text may have originally been expected to apply in a particular way to a particular circumstance, that does not mean that its original meaning always must apply in the same way.” Thus, according to Baude, “originalists can sensibly apply legal texts to circumstances unforeseeable at the time of enactment,” and come up with results that defy the original expectations of the people who drafted and ratified those provisions.
On Friday, the Cornell Law Review On Line published my response to these arguments (there has also been a short back and forth in the Green Bag between Baude with Stephen E. Sachs and Judge Posner and myself on the same issues). The thrust of my reply is that Baude's descriptive account of constitutional law is accurate but labeling that account “originalist” is obviously misleading if originalism as a term of art is to carry any weight separate from living constitutionalist or pluralistic theories of constitutional interpretation. …
Posted at 6:04 AM