An Originalist Future
John McGinnis and I have a new essay, An Originalist Future, describing what the world would like if originalism became the dominant method of constitutional interpretation. See here and here. It is based in part on the last chapter of our book, Originalism and the Good Constitution, but goes beyond that chapter.
In the essay, we write:
Reviving a comprehensive originalism would greatly improve our polity, creating both better judicial decisions and a more vigorous constitutional politics. It is a world where constitutional decisions would have good consequences and constitution making would become both popular and future-oriented. It bears no resemblance to the world which critics of originalism fear—where the dead hand of the past traps the living into a dead end of anachronistic principles. Only through a systematically originalist jurisprudence can constitutional law become what it must be if it is to act as the true rudder of the nation–simultaneously law that is unchanging and objective, law that is of high quality, and law that is subject to revision by the people of each generation.
One of the basic points of the essay is that if the Supreme Court refuses to update the Constitution – if it simply decides cases based on the original meaning – then the only way to update the Constitution will be through the constitutional amendment process. While that process has now been superseded by Supreme Court judicial updating, a return to originalism would revive that process. Once again, the people of the United States could undertake to decide on the content of their fundamental charter rather than leaving that task to the whims of a majority of 9 Justices.