At Concurring Opinions, Gerard Magliocca: Halbig and Originalism:
At issue [in Halbig, the Obamacare subsidies litigation] is a major provision in the most visible statute passed by Congress in years (if not decades). And we cannot agree what that provision was trying to accomplish just four years after it was enacted. Did Congress use subsidies to give states an incentive to set up health insurance exchanges, or was that not the case? Was there a drafting error, or was this intentional? If that is unknowable, what are we supposed to do with ambiguous constitutional provisions ratified more than two centuries ago?
Larry Solum responds (persuasively, from my perspective) at Legal Theory Blog. A number of good points, including this one:
First, I don't know of any originalist who claims that we can know with certainty the original meaning of each and every provisions of the constitutional text. Some provisions, e.g., the privileges or immunities clause of the 14th Amendment, are textually opaque. This does not mean we can or should give up. And there may be a preponderance of evidence on a disputed provision, but thoughtful originalists certainly know (better than most) that some originalist work is very difficult.
Professor Magliocca has further thoughts in response here.
Posted at 6:28 AM