A great post by Randy Barnett, here at Volokh Conspiracy, responding to this post by Michael Dorf at Dorf on Law (and this earlier one).
Interestingly, Professor Dorf says (as part of a longer argument):
Originalists think that the meaning of any provision of the Constitution simply is the original understanding. Nonoriginalists like me mostly think that the original understanding is an important starting point in construing the constitutional text, but not necessarily the end point.
This strikes me as an important concession. If the original understanding "is an important starting point," Professor Dorf necessarily assumes that the original understanding is (at least in some nontrivial number of cases) knowable at at a level of specificity and a with a degree of confidence that would allow it to be applied to modern problems. (Of course, in his view, it doesn't have to be so applied, but it could be). Yet a common criticism of originalism is precisely the opposite — that original meaning is not knowable to this extent.
I'm not sure if this really reflects a deep split in nonoriginalism or whether nonoriginalists shift between the two positions depending on which seems more congenial. But I am happy to take Professor Dorf at his word and count him as believing originalism is possible, even if not always desirable. (Insiders know that my scholarship is much more directed at the former proposition rather than the latter).
In an event, Professor Barnett responds in part:
As the rest of his blog post makes clear, like other living constitutionalists, “changed circumstances” does all the work in Dorf’s analysis. If adhering to the original meaning of the text fits today’s “circumstances,” then it should be followed. But if “circumstances” have changed, then it need not be followed. So all th[at] matters is what meaning fits today’s circumstances. Whether or not it is a “starting point,” the original meaning plays no role at all in the “ending point” of the analysis. All that matters is the meaning that, in Dorf’s view, “works” today.
Posted at 6:36 AM