At Liberty Law Forum, Steven D. Smith (University of San Diego Law School): Meanings or Decisions? Getting Originalism Back on Track. From the introduction:
For originalists, must the guiding criterion of constitutional interpretation be original meaning (whether understood in intentionalist or public meaning terms)? You might thing the answer has to be yes. That is just what it means to be an originalist: to connect constitutional interpretation to original meaning.
I think the question is more complicated—and more fraught. Ironically, a focus on original meaning has led originalism to lose touch with its own goals. I will try in this brief essay to explain how this is so. And I will suggest an alternative that might help originalism get back on track. Until someone comes up with a better name, I will tentatively call this alternative “decisional originalism.”
Posted at 6:01 AM