At Balkinization, Jack Balkin: Why Originalism Will Not Fade Away (responding to Eric Posner's post discussed here). He offers five descriptive claims, all of which he outlines in more detail and all of which seem right to me (although I think there are others as well.
1. Originalism is more than a theory of constitutional interpretation. It is also a common language for political conservatives to talk about their constitutional values. … The conservative movement is not about to abandon originalism, and as long as there is a conservative movement in the United States, you can predict that originalism will remain a powerful force in legal argument.
2. … Whatever one may say about originalism as a comprehensive theory, originalist arguments are here to say. Originalist arguments have been commonplace in the opinions of the Supreme Court of the United States from the country's inception, even if very few Justices have adopted originalism as a comprehensive theory. That is because most Justices do not have comprehensive theories of constitutional interpretation. … All Justices are happy to make originalist arguments when it suits their position. …
3. As long as judges or Justices want to discard lines of precedent– and they always will– they will find originalism a useful device. …
4. Judges make originalist arguments whenever they face a question of first impression, or a situation in which precedental materials are sparse. Recently Jamal Greene has argued that judges often use originalist arguments whenever they are construing a piece of constitutional text that looks to them like a rule but is ambiguous. [Ed.: Professor Greene presented this paper at the San Diego conference on Friday.] If so, then there will be plenty of possibilities for originalist argument in the future, even among non-originalist Justices. …
5. Finally, we should distinguish originalism as a comprehensive theory of constitutional interpretation from political originalism– the invocation of the founders in political arguments, and from cultural originalism– the almost religious reverence that Americans have for their founding generation. There is no reason to think that either political originalism or cultural originalism will depart along with Justice Scalia.
As long as political and cultural originalism remain firmly lodged in American thought and American rhetoric, originalist arguments– no matter how badly done– will remain a staple of legal argument. That is because legal argument, and law itself, is always shaped by the larger political culture that surrounds it. …
UPDATE: A response from Eric Segall: Originalism Can't Fade Away Because it was Never Really Here. He argues in principal part:
[Balkin's] replies [to Eric Posner] miss the point. Yes, judges may well continue to trot out originalist evidence to support results they have reached on other grounds. But so what? They did that long before Justice Scalia or Judge Bork came onto the scene, as a way to use legal rhetoric to mask value choices. Balkin admits that “originalist arguments have been commonplace in the opinions of the Supreme Court of the United States from the country's inception, even if very few Justices have adopted originalism as a comprehensive theory.”
Balkin says that Scalia did more than use originalist arguments but actually embraced it as a “comprehensive theory.” Certainly Scalia said he did that but as I’ve argued before, and Mark Graber just wrote on Balkin’s own blog, in the real world Scalia “was a judicial activist who struck down laws based on a contemporary constitutional vision that he campaigned for aggressively in both legal and political settings.” In other words, even Scalia did not vote on an originalist basis and, as I’ve pointed out, neither does Justice Thomas. In this sense, I disagree a bit with (Eric) Posner because, as a result-generating device, originalism cannot fade away because it was never here to begin with.
Posted at 6:42 AM