The Case for Originalism
Often considered the solution for—or alternative to—judicial activism, originalism has been adopted by numerous judges and debated extensively in the legal academy over the last four decades. Yet, its proponents disagree over many nuances. Some originalists look to the “original public meaning” of the Constitution, others to the meaning that it would have to a reasonable hypothetical observer. Some find a distinction between “interpretation” and “construction”; others see no difference.
Progressives cite such disagreements as proof that originalism is not a viable alternative to their preferred expansive reading of the Constitution. Yet internal debates shouldn’t obscure the guiding principles of originalism, which are surprisingly simple. Only craft and ingenuity can obscure them.