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04/10/2017

Larry Solum on the Gorsuch Confirmation
Michael Ramsey

At Legal Theory Blog, Larry Solum: Originalism in Constitutional Time.  From the introduction (to a rich essay that can't be easily summarized):

Originalism is mostly an academic theory, discussed by law professors in law review articles and academic monographs.  Occasionally, political scientists and historians join the conversation.  But once in a great while, originalism enters public political debate.  Historically, this entry was initiated by Attorney General Edwin Meese, but in the past two or three decades most of the public discussion of originalism has focused on the ideas of Justice Antonin Scalia, who wrote books, gave speeches, and wrote ferocious dissenting opinions--all of which garnered the attention of the media, public intellectuals, and the citizenry at large.  Scalia's passing, and what seemed at one time as his almost certain replacement by a living constitutionalist, might well have resulted in a decline of public interest in originalism.  Originalist scholars would have turned to the long-run strategy--building the intellectual infrastructure for an originalist revival at some point in the distant future.

Instead, the appointment of soon-to-be Justice Gorsuch to the United States Supreme Court has resulted in an unprecedented public dialog on originalism and living constitutionalism.  Moreover, given the age of the most senior Justices, there is a significant possibility that an additional one, two, or even three originalists will join the Court.  Gorsuch's appointment assures the originalism will continue to occupy center stage in public and judicial debates over constitutional theory.  The appointment of two or more additional originalists to the Court would decisively shift the balance of jurisprudential power away from living constitutionalism and towards originalism as the dominant approach to constitutional interpretation.

And in conclusion:

And so, we arrive at a critical moment in constitutional time.  Only a few months ago, many were trumpeting a decisive end to originalism.  Originalism was about to be "off the wall" not "on the table."  Instead, originalism is once again the focus of public and academic attention--the theory to beat.  But this moment in constitutional time is not a moment of triumph for originalism.  Instead, it is a moment of open constitutional possibilities--the future shimmers, with glimpses of alternative constitutional futures coming in and out of focus.  In some constitutional futures, the constitutional gestalt shifts and originalism becomes the dominant mode of constitutional discourse, fundamentally altering our conception of the relationship of constitutional law and politics.  In others, living constitutionalism regains the ascendency and the downward spiral of politicization that has infected the judicial selection process and even the Supreme Court itself continues apace.  Where that spiral bottoms out, I do not wish to speculate.  There is enough dread in the world.

At Volohk Conspiracy, Randy Barnett has brief further thoughts here.