In fact, I was by no means the first to spot the likely consequences for original meaning originalism. Mark Greenberg and Harry Litman made this argument in 1998; a year later Randy Barnett made a similar move, as did Kim Roosevelt in 2006; and of course, Ronald Dworkin's notion of semantic originalism made the point even earlier still. The major problem for Steve is that going back to something like "original decisions originalism" is just going to dredge up the same problems as earlier versions of originalism that have since been abandoned.
I believe that there is no going back at this point. Originalism and living constitutionalism are now one nation, indivisible (with liberty and justice for all, we hope!)--and originalism, like humanity itself, is condemned to be free.
Wednesday, December 24, 2014
Balkin: "New Developments in Originalist Theory"
From Jack Balkin here. A taste: