At Dorf on Law, Eric Segall: The Problem Isn't Naming Originalism: A Response to Professor Rappaport. From the introduction:
Professor Michael Rappaport recently wrote an essay for the Originalism Blog (a site that has been quite generous in publishing my critiques of originalism) titled "The Challenge of Naming the Modern Originalist Movement." In this piece, Rappaport concedes that there are many internal squabbles within the originalist movement and that these disputes can lead to different theories all labeled originalist. He also, suggests, however, that most originalists coalesce around Professor Larry Solum's two bedrock principles allegedly underlying all or most originalist theories: the fixation thesis (the original meaning of the text is fixed at ratification); and 2) the constraint thesis (that meaning constrains today's political actors, including judges).
Rappaport discusses the various labels that originalsts use, such as New Originalism or his own Original Methods Originalism, and concludes that originalists need to be more sensitive to the naming of their respective theories and try to find more common ground. The entire essay, however, fails to wrestle with the two major defects with Originalist theory today, which are emphatically not a labeling problem. The real defects are that there is no coherence among different originalism theories, and that the fixation and constraint principles don't come close to providing a glue that can bind varying originalist theories together.
And from further along:
Some originalists believe originalism is already our law, most believe it is not. Some originalists believe in strong judicial deference while some argue for almost no deference. Some originalists believe the proper search is for original meaning. Others think the appropriate focus is original intent. And no originalist has yet articulated a well-accepted theory by other originalists as to how to fit non-originalist precedent into a coherent and consistent originalist philosophy.
More specifically, as I've written before,
llya Somin and Steven Calabresi urge a form of originalism that they claim justifies the Court's decisions overturning same-sex marriage bans, but many other originalists such as Michael Paulsen think that conclusion is, well, not only not originalist, but comparable to Dred Scott. Randy Barnett and Ilya Shapiro would like to overturn much of the administrative state through their brand of originalism via "judicial engagement", though Michael McConnell would absolutely deny judges that role under his version of originalism. Meanwhile, Will Baude and Steve Sachs think originalism is already our law (possibly including cases like Brown and Obergefell). Most originalists today do not agree with that view.
These aren't labeling differences but major substantive disagreements.
Posted at 6:28 AM