Saul Cornell (the Fordham University historian best known for developing the “limited individual right” interpretation of the Second Amendment) has a new essay outlining some of the difficulties of applying “New Originalism” to modern cases.
Those of us on the right might dispute some of Cornell’s examples and arguments (for example, Scalia’s Heller opinion is “law office history”). And of course, proving that originalism is far from perfect is not the same as proving that originalism isn’t the best tool we have for limiting the ability of judges to change the law without the public’s consent. However, the overall thrust of the piece — that one can cherry-pick through history to make at-least-somewhat-plausible “New Originalist” arguments for just about anything — is true.
I find especially interesting the suggestion that “Old Originalism” (which focuses on the the original intent of the Framers rather than the original public meaning of the words they used) might be better in some ways than the new. At the very least, it’s more resistant to cherry-picking, because the body of evidence indicating legislators’ intent is much smaller than the body of evidence indicating how people in general saw the law or the words in it.