Jose Joel Alicea (Harvard Law School) has posted Originalism in Crisis: The Movement Towards Indeterminate Originalism on SSRN. Here is the abstract:
I argue that the theories of Randy Barnett, Jack Balkin, and Lawrence Solum represent a fundamental rejection of what originalism has been through much of its history and what it ought to be if it is to make a meaningful contribution to legal thought. The fact that originalists have by and large welcomed these three theorists into the originalism tent is therefore deeply troubling because the meaning of the word “originalism” has been stretched beyond recognition. There is now a crisis of indeterminacy within originalist scholarship. In this essay, I will attempt to recover the core concepts that comprise a sound originalist theory in order to reestablish the perimeter of originalism. I will argue that Barnett, Balkin, and Solum constitute a separate scholarly movement, what I call “post-originalism.” The paper has obvious implications for originalist theory, but it is equally important for nonoriginalists who require a clear conception of what originalism is in order to meaningfully engage its proponents in scholarly discourse. At its heart, then, the paper is an effort to reintroduce theoretical boundaries so that scholars do not talk past one another and so that originalism can continue to have influence in American law and politics.
This paper was written as a Senior Thesis at Princeton. Quite an impressive accomplishment. It is not just Justices Sotomayor and Kagan whose senior Princeton theses are worthy of examination.