Most lawyers today seem to believe that they must make new law because the one they inherited was in fact fundamentally unjust.
Here I want to draw a distinction between two types of originalism: between a radical originalism and a more moderate originalism.
The radical originalist believes that the Constitution’s original meaning establishes a regime that is extremely different from the current legal regime. The easiest way to get a radical view is through a strong federalism. If one believes that the Commerce Clause is narrow, that there is no Spending Power, that the Necessary and Proper Clause is very limited, then one can generate a regime that holds Social Security to be unconstitutional, that places significant limits on paper money, and that treats a large number of federal programs as unconstitutional. Similarly, if one believes there are strong limits on the states through the 14th Amendment that extend to economic rights, then a significant number of state regulations would be unconstitutional as well.
The moderate originalist, by contrast, believes that the Constitution’s original meaning establishes a regime that is different, but not radically, from the regime under which we live. In the area of federalism, one can get to this result by believing in strong national power. In the area of state regulation, one can believe that the 14th Amendment permits incorporation, but otherwise merely prohibits caste legislation.
One sees the differences between these approaches in different theories of originalism. The radical approach can be easily justified under a popular sovereignty approach to originalism or a variety of other justifications, including the supermajoritarian approach. This approach looks back to earlier decisions – at the Founding or during Reconstruction – that might differ significantly from our modern institutions.
The moderate approach might seem to be most congenial to the positivist justification of originalism – the view that originalism is our law. Clearly, if our existing law is binding, and if it is originalist, then there is little divergence between originalism and the existing law.
But this analysis is too simple. Positivist originalist often have arguments that they employ to uncouple the existing decisions from our law. For example, Stephen Sachs argues that our law today might adopt certain higher order norms, but then mistakenly apply those norms to reach mistaken decisions. Even though those decisions are mistaken, our law should still be understood as comprising the higher order norms rather than the mistaken decisions. Thus, if the higher norms include originalism, then the fact that nonoriginalist decisions are reached does not necessarily mean that nonoriginalism is the law. For more on this, see here.
Another way that a moderate originalism can be justified is through precedent and related doctrines, such as liquidation. Under this view, even if the decisions were mistaken when rendered, they can be followed today based on precedent.
But however one reaches the moderate or radical approaches, these two different approaches really capture something very important about how we think about originalism and how it operates. The radical originalists are something of revolutionaries, believing that our existing institutions are problematic and need to be replaced. The moderate originalists, by contrast, are much more accepting of our modern institutions, even though they generally seek certain changes.