Over at Law and Liberty Blog, Michael Rappaport has a post entitled Dorf and Solum on the Determinacy of Originalism. Here is a taste:
Dorf, like many originalist critics, identifies certain alleged defects of originalism. But originalism, like all theories, is not perfect and has its weaknesses. The relevant question is whether originalism is better than the alternative approaches. Put differently, we do not want to commit the nirvana fallacy – criticizing a theory for not being perfect.
One way to avoid the nirvana fallacy is to compare originalism to real world alternatives. And if there is more than one alternative – which there are many in the case of nonoriginalism – the question is to compare originalism to various other approaches.
