At Liberty Law Blog, my colleague Steve Smith (guest-blogging for July) asks: Has “Originalism” Lost Its Way? An excerpt:
The progress of originalism is impressive–and all to the good, I think. And yet I sometimes wonder: somewhere along the way did originalism . . . well, lose sight of its central purpose– of its “original intention,” so to speak. (I have elaborated on some of my reservations here [Ed.: The link is to a great paper called "That Old-Time Originalism"].) The fact that high-profile “progressive” scholars like Michael Perry back in the 1980s and more recently Jack Balkin can convert to originalism without in any way altering their capacious conception of the Court’s role might be a sign that, somewhere along the line, originalism may have gotten off the track.
Of course, more conservative originalists may question whether Perry and Balkin truly deserve to be included in the fellowship at all. But my sense is that Perry and Balkin are in good faith; they don’t seem to be acting as subversive infiltrators or impostors. More importantly, what Perry, Balkin, and other more progressive originalists do seems authorized by originalist orthodoxy. After all, they are merely working from a distinction that even most conservative originalists (not all) insist on– namely, the (ostensible) distinction between “meaning” and “expected applications.” Once you say that the “meaning” of a constitutional provision can deviate from what the enactors expected the provision to do, and can instead incorporate some “principle” or “norm” whose scope and implications the enactors only imperfectly comprehended, there is nothing– nothing in originalism, anyway– to preclude the Perrys and Balkins of the profession from arguing for expansive interpretations that would leave the enactors shuddering in their graves.
Posted at 6:20 AM