The Originalism That Was, and the One That Will Be

Abstract

The original title for the conference talk on which this brief article is based, hand-picked by the excellent Jack Balkin, was, “What Was Originalism.” While characteristically clever and provocative, the suggestion of originalism’s death captures my position only imperfectly. I believe that originalism—in a broad, generic sense, encompassing any belief that the text is the baseline and that its authors’ expectations count for something—will become more orthodox than ever. And, like many participants at Jack’s wonderful conference, I suspect that his Living Originalism will hasten that trend: already, originalism’s conservative sentinels have predictably attempted to pocket the “originalism” part and to dismiss the “living” elements. However, a certain kind of conservative originalism, or perhaps several positions in originalism’s “logical space,” has or have become unsustainable—partly for theoretical, academic reasons, but in much larger part on account of changes in the broader political context in which originalism operates. Originalism will live, but its dominant forms will have a different tone and orientation.