Once you think about where originalism came from and what it was supposed to do, you begin to suspect that it may have run its course.
One important methodological issue involves the question of how to interpret common law rights that are made part of the Constitution. Common law rights had different features than constitutional rights. In particular, to what extent does a common law right, which in at least certain ways was subject to change or adjustment, become frozen when it was made part of the Constitution? The issue is an important one because so many of constitutional rights, especially those in the Bill of Rights, were initially common law rights.
There are at least three possible positions one might have about this issue:
1. Static: When the common law right is constitutionalized, it becomes fully frozen, as if it were written law. To determine the meaning of the right, one looks to the common law in 1789. The existing decisions regarding the common law constitute the full meaning of the right.
2. Dynamic: Although the common law right was written into the Constitution, it did not change its character. Instead, it remains as flexible as a common law right. Under this interpretation, one might see something like the living constitution view in the Constitution.
3. Intermediate: When the common law right was constitutionalized, it changed its character, but it did not become fully frozen as if it were written law. Under this view, one treats the right as a common law right as of the time it was enacted, but does not give it a dynamic effect with changing circumstances.
While I have not fully made up my mind, these days I lean towards the intermediate position. Let me try to explain why. There is a lot to say about this, but I will try focus on some of the essentials.
My support for the third position comes through a process of elimination. I don’t think the first or second are adequate. Start with the first, which appears to be something like Justice Scalia’s position. Defenders of the position would argue that the common law was placed into written law and therefore became transformed and frozen in place, as is other written law. They would also argue that the content of the common law right which was enacted is best understood through the decisions that were issued prior to its enactment.
I must admit there is something to be said for this position (which I have leaned towards in the past), but in the end I believe it is mistaken. The main reason is that the content of the common law right would not have been understood in positivist terms, as simply the sum of the decisions that had been decided under the provision. Instead, the right would have been understood as comprising matters that were not entirely reflected in existing decisions.
Now consider the second position: the common law right remains as dynamic as it was under the common law. The problem with this position is that common law rights were dynamic enough to be inconsistent with a written constitution. Common law rights might change based on changes in values or customs in the country (and this assumes correctly in my view that judges do not get to simply ignore the customs based on their view of good policy). It seems unlikely that such values or customs would get constitutional protection, so that a constitutional amendment would be needed to overturn the values or customs if a court found them to have changed.
This leaves the third, intermediate position. Under this view, the right is fixed at the time of the Constitution’s enactment, so that changes in values or customs cannot affect it. But at the same time, the right is not limited to the specific decisions were decided.
Imagine that a case comes up under a common law right that has been constitutionalized. Under the common law decisions as of 1789, there were three existing exceptions to the right. Should the court recognize a fourth exception? Under the first position, the answer is no. Under the third position, however, the court should recognize the additional exception if a common law court in 1789 would have recognized the exception based on the legal materials, values and customs existing as of that time. But it should not recognize another exception if doing so would require considering the values and customs of later periods. In this way, the right retains its common law content without losing its written law character.