An originalist approach to due process can take several forms, and Justice Gorsuch's "surprise" decision in Dimaya v. Sessions reinforces this.
My new book, Originalism and the Good Constitution (coauthored with John McGinnis), is now available at Amazon.com (although the Harvard University Press website lists the publication date as November).
The book offers a new normative defense for following the original meaning of the Constitution. The primary argument is that we should follow the Constitution’s original meaning because the Constitution is a good one that protects individual rights, democracy, and limited government. But the goodness of the Constitution is based not just on our evaluation of the Constitution, but also on the fact that it was enacted through a beneficial supermajoritarian enactment process that generally leads to desirable constitutional provisions.
While the book offers this new argument, it does quite a bit more, exploring various issues of originalism based on the book’s overall theory. First, the book offers a new theory of interpretation, called original methods originalism, which argues that one should interpret the Constitution based on the interpretive methods that the enactors would have deemed applicable to the Constitution. This interpretive approach is defended both as the most accurate way of determining the Constitution’s meaning as well as the method that will lead to the best consequences.
Second, the book presents a theory of precedent consistent with constitutional originalism. In contrast to some commentators who argue that originalism does not allow precedent, the book argues that the original meaning permits precedent as a matter of common law revisable by congressional statute. The book also presents the beginnings of a normatively attractive approach to nonoriginalist precedent – an approach that explains when it is desirable to follow such precedent and when it is not.
Third, the book focuses upon the relationship between originalism and constitutional amendments. In particular, it argues that nonoriginalism undermines and supersedes the constitutional amendment process and that the reason why so few important amendments have passed in the last 50 years has been the growth of nonoriginalism. If we are to enjoy the benefits of constitutional amendments, then the courts must refrain from updating the constitution and instead follow the original meaning.
Finally, the book explores the question of originalism and the historical exclusion of blacks and women from the constitutional enactment process. It discusses the problems for the desirability of the Constitution from that exclusion and argues that the problems it created have largely been remedied through subsequent constitutional amendments.