At Law and Liberty, John McGinnis: The Three Fault Lines of Contemporary Originalism. From the introduction:
As a jurisprudential theory becomes dominant, it tends to fracture. One reason is that academics are naturally both fractious and enterprising. They gain justified renown by recognizing subtle frailties as well as important difficulties in a major theory and by trying to improve both its content and articulation. Because there is so much at stake in these matters practically, litigants and politicians also try to reorient the theory to serve their own interests.
So it has been with originalism. Originalism began in opposition to the free form jurisprudence of the Warren Court and largely defined itself as a theory of judicial restraint with that restraint being the anchor of original intent of the Framers and subsequently the original meaning of the Constitution’s text. But with the disappearance of its original opponent, originalism had to offer a positive defense and definition of itself. Currently originalists address fundamental questions about originalism, such as normative ones like why one ought to be an originalist, and positive ones like how to find the original meaning. Three issues currently being debated represent fundamental fault lines in contemporary originalism, the resolution of which may shape the future of constitutional jurisprudence.
I won't spoil the suspense by saying what the three are (though I agree with the list). I was struck, though, by one that is not on the list: the fault line between original intent originalism and original public meaning originalism. Is this one omitted because Professor McGinnis thinks it's been resolved in favor of original public meaning? (My colleague Larry Alexander would dispute that). Or is it omitted because Professor McGinnis thinks it's not that important a fault line as a practical matter, in line with this article?
Posted at 6:55 AM