Every originalist is familiar with the objection that “the Framers didn’t intend for the Constitution to be interpreted in an originalist fashion.” My colleagues here have challenged that assertion. But let me draw out a problem with it to which Ed Whelan alludes. Most originalists believe that it is the original meaning of an enactment–what the ratifying or consenting public believed it was ratifying or consenting to–that governs, not the subjective intent of whoever proposed the enactment. Moreover, this sort of originalism is a kind of deduction from the nature of written law. On that understanding, it wouldn’t matter if it could be proven that most of the famous Founders were against originalism. Only if they enacted a constitutional amendment requiring judges to interpret the rest of the Constitution in a non-originalist way would we have a good reason for judges to do so.

Stuart Taylor also writes that the original meaning would be “intolerable to conservatives as well as liberals.” If a particular policy result really were intolerable to everyone, however, it would fall without any necessary recourse to non-originalist judges. His example–the flogging or execution of a 12-year-old for theft–would fall democratically.

Finally, Taylor suggests that Scalia and Thomas have departed from originalism on some issues, such as race. If that is true–I think it is–then why would it follow that we should reject originalism? Maybe instead Taylor should urge Scalia and Thomas to improve their originalism.