Eric A. Posner on Why Originalism Is So Popular.
Posner, who is something of a rightwing nonoriginalis, emphasizes what I regard as two of the major criticisms of many originalist theories: First, that originalism requires a workable constitutional amendment system, but our system does not produce amendments. Second, that many nonoriginalist decisions have very strong popular support (and therefore overruling them would be problematic).
In my own work with John McGinnis, we have attempted to address these criticisms. First, we argue that the constitutional amendment system is only broken because of two features nonoriginalism. When a nonoriginalist court updates the Constitution, the amendment system does not have the opportunity to operate. Moreover, people are reluctant to pass amendments that will then be interpreted nonoriginally. See here. If the Court were consistently originalist, amendments could be passed.
Second, we argue that originalism allows for precedent. And the precedent system we recommend authorizes entrenched precedents — precedents that have the same support that a constitutional amendment has. See here. Thus, very popular precedents would not need to be overturned.
Posner does not address these arguments. But from my perspective, these old criticisms of originalism need to do so.
Posted at 12:56 AM