William Baude (University of Chicago - Law School) & Stephen E. Sachs (Duke University School of Law) have posted Originalism's Bite (Forthcoming, Green Bag 2d) on SSRN. Here is the abstract:
Is originalism toothless? Richard Posner seems to think so. He writes that repeated theorizing by "intelligent originalists," one of us happily included, has rendered the theory "incoherent" and capable of supporting almost any result. We appreciate the attention, but we fear we've been misunderstood. Our view is that originalism permits arguments from precedent, changed circumstances, or whatever you like, but only to the extent that they lawfully derive from the law of the founding. This kind of originalism, surprisingly common in American legal practice, is catholic in theory but exacting in application. It might look tame, but it has bite.
Highly recommended. And short.
