Inviting judges to consider the consequences of their decisions or recent practice as guides to interpretation threatens to bury originalism.
Recently, a number of legal thinkers who might be described as conservative nonoriginalists have criticized originalism — Charles Fried, Harvie Wilkinson, and perhaps Justice Sam Alito. They appear to have differing philosophical viewpoints — a certain kind of deontology, pragmatism, and Burkianism — but all seem to reject originalism as the primary basis for constitutional law. What is going on?
Originalism has grown mightily in recent years — greatly expanding among libertarians and even increasing among liberals. But one has the impression that the great majority of conservatives are originalists. Does this trinity suggest otherwise?
I don’t think so, but part of what may be occurring is a generational disagreement. My sense is that a very large percentage of conservative constitutional law scholars who are relatively young are originalists. But people who grew up in an earlier period, such as Fried and Wilkinson, might be unlikely to be originalists given how criticized and unpopular the theory was when they were developing ideas about constitutional law. Justice Alito is more of an intermediate case — he is younger than the others and certainly spent some time at OLC in its originalist heyday, but he did attend Yale Law School when originalism was near universally condemned and Bickel, who appeared to influence him, was no originalist.
Now that originalism has gained greater prominence, it is no surprise to see these older conservative nonoriginalists attacking it. But that does not mean they are moving against it. They always were against it; they just didn’t feel the need to criticize back when it was less influential.