It's really hard to talk about originalism to non-lawyers because they think in terms of right or wrong, terms that do not fit one theory of interpretation among many.
There is no right or wrong way to interpret a 200 year old text, a 2,000 year old text or, for that matter, a 200 day old text. I would argue that the younger the text the more likely originalism will be more useful than other methods.
But it cannot--and I did not say "should not"--be applied consistently over long periods of time.
The central value of originalism, that judicial power be limited, is a very important value, never to be ignored no matter how old the text.
But it's really hard to roll around in the stupid and play pretend the way the public alleged originalists demand. If originalism answered all questions, surely the SCOTUS would by now be out of the constitutional interpretation business, no?
My most infamous excursion into textual literalism was my reading of the DWI statute that passed back when I was hearing criminal cases. The Texas Legislature intended to describe the amount of alcohol in blood, breath, and urine in ways that would be effectively identical and define intoxication that mathematically exact way. They unfortunately legislated the formula incorrectly.
I held the statute to be unconstitutionally vague as to the particular part that was incomprehensible by the plain language, leaving the section about driving while impaired as the only way to get a conviction in my court.
When the Texas Court of Criminal Appeals finally got the issue, they took a different tack and decided to read the law as if the Legislature had said what the Court believed it intended to say rather than what it actually said.
They were not right. They were just last.
I applied my method correctly and they applied theirs correctly.
Nobody noticed that in over a year when my ruling was in place, there was no measurable difference in DWI conviction rates in my court. But that's not relevant....or is it?
"Originalism Talk: A Legal History"
FSU College of Law, Public Law Research Paper No. 638
MARY ZIEGLER, Florida State University - College of Law
Progressives have long recognized the tremendous political appeal of originalism: it achieves results consistent with conservative values but promises the public judicial neutrality. By drawing on new historical research on antiabortion constitutionalism, this Article argues for a radically different understanding of the originalist ascendancy. Contrary to what we often think, conservative social movements at times made significant sacrifices in joining an originalist coalition. These costs were built in to what this Article calls originalism talk — the use of arguments, terms, and objectives associated with conservative originalism.
Scholars have documented the costs confronted by social movements reliant on rights-based rhetoric, particularly when activists seek social change in the courts. Originalism talk was similarly constraining. By becoming part of an originalist coalition, abortion opponents increased their influence over the selection of federal judicial nominees. At the same time, in stressing originalist rhetoric, abortion opponents had to set aside longstanding constitutional commitments involving the right to life, the personhood of the fetus, and the existence of rights based in natural law or human-rights principles.
The story of antiabortion constitutionalism offers insight into progressive attempts to create a doctrinally satisfying and politically resonant alternative to conservative originalism. Often, the issue is how to create an interpretive method that accomplishes as much as originalism: advancing progressive constitutional beliefs while appealing to the public’s interest in the rule of law. As this Article shows, however, it is not clear that the benefits of belonging to the originalist coalition outweigh its costs.