Jud Campbell (Stanford Law School) has posted Originalism's Two Tracks (104 B.U. L. Rev. 1435 (2024)) (16 pages) on SSRN. Here is the abstract:
Originalists constantly invoke history. But they are divided over how to approach the past. Some originalists—let's call them "track one" originalists—view the past in a backward-looking way, using modern criteria to identify earlier constitutional content. Other originalists—let's call them "track two" originalists—try to understand the past on its own terms, using historical criteria to identify earlier constitutional content. Although underappreciated, this division has significant implications for originalist theory and practice. It bears, for instance, on whether originalists should resuscitate long-forgotten features of our constitutional past, such as the embrace of general fundamental rights that were grounded in natural or customary law rather than in constitutional text. By exposing foundational paradigm shifts in American constitutionalism, Jonathan Gienapp's pathbreaking book, Against Constitutional Originalism, underscores the importance of distinguishing between "track one" and "track two" originalism. And how originalists respond to Gienapp's challenge, this Essay argues, should largely depend on which of these two tracks they choose.
As the saying goes, there are two kinds of people, those who believe in binary choices, and those who don't.
UPDATE: At Legal Theory Blog, Larry Solum says "Highly recommended. Download it while it's hot." But he also has two paragraphs of critical commentary, which are not easily excerpted and are worth a full read. I'm not sure what I think about the first paragraph but I entirely agree with the second (though some originalists I think would not).
Posted at 6:22 AM