At Dorf on Law, Eric Segall: Originalist Defenses of Overturning Same-Sex Marriage Bans: Really? From the introduction:
It is official. We are all originalists now, and interestingly, at the same time, there are no real originalists left. I know this because a number of prominent originalists have suggested that the 14th Amendment, as originally understood, prohibits bans on same-sex marriage. If that is true, originalism can mean anything and everything.
And from later in the post:
I would venture to say that when academics like Jack Balkin, Randy Barnett, and Steven Calabresi make “implausible” originalist arguments, and when other smart folks drain originalism of most interpretive and normative force, it is a hollow victory for those who believe that originalism means judges should follow the principles embraced by the people who ratified the text that is at issue. If it is possible for people to earn the label "originalist" by identifying broad principles like equality, liberty, fairness, and protection of speech, and then apply apply those vague aspirations according to modern norms to reach results that would have shocked the ratifiers, then they are definitely embracing what Balkin calls "living originalism." I am perfectly okay with that moniker as a description of these folks but I am pretty sure most self-identifying originalists would protest (perhaps too much).
And in conclusion:
But, my instinct is that the use of broad principles coupled with selective use of history (which almost always supports both sides, e.g., Heller), does not solve the real problem which is that, as Professor [Stephen] Sachs says, a sincere originalist can embrace virtually any use of those principles–which is exactly why noted liberal William Eskridge and noted conservatives can agree that same sex-marriage bans can be overturned by judges based on “originalism.” Since no one living in 1868 ever thought that could be true, I have no idea what that means other than we are all originalists now or none of us are. The difference won’t matter to the results judges reach (or likely to anyone outside academia) one bit.
Posted at 6:18 AM