At National Affairs, Joel Alicea has a long essay titled Originalism and the Rule of the Dead. Here is the introduction:
The conservative legal movement is in the midst of a great debate about its future. For decades, originalism – the theory that the original meaning of the Constitution is binding on today's interpreters — has been the default theory of legal conservatism, and so it remains today. But the struggle within legal conservatism is about the very meaning of originalism, as novel theories have challenged longstanding beliefs about originalism's core philosophical premises.
Since its inception, originalism has insisted on obedience to the past in order to vindicate the sovereignty of the living. It has demanded that today's majorities adhere to the original meaning of the Constitution, recognizing that this is essential if those majorities are to govern themselves. In this, originalism has stood against the all-too-understandable impulse to break free of past constraints and empower the present. It has spurned calls for a "living Constitution," the meaning of which changes to reflect the values of society or of a chosen elite.
The new trend in originalism abandons this heritage. It self-consciously rejects the authority of the past and the duties rightfully imposed by our forebears, elevating instead the will of the present and the ideologies of its theorists. Having internalized the basic assumptions of living constitutionalism, it is but one step away from becoming what has always been considered originalism's intellectual adversary.
If originalism is to avoid collapsing into that which it has always opposed, legal conservatives must begin by remembering why they believe in originalism. They must look to originalism's past in order to preserve its future.
And from the conclusion:
Barnett and Balkin look to the history of the Constitution, but originalism is about more than history. They stress the importance of the constitutional text, but originalism is about more than words. By embracing the dead-hand argument, Barnett and Balkin replace originalism's core philosophical assumptions with those of living constitutionalism. To the extent that legal conservatives adopt Barnett and Balkin's views, they adopt premises antithetical to their own.
Legal conservatives would do better to hold fast to the principles that have served them well, to safeguard that which it has been their special duty to defend. They would do better to insist on the rule of the dead.
Posted at 6:21 AM