The only real mystery about originalism is how so patently flawed a theory can possibly have become so influential. The reason? It’s like a trick mirror: It reflects whatever its user wants to see.
As the Dean points out, (a) originalism is a lousy doctrine, and (b) originalism is a phony doctrine — a doctrine of convenience, regularly ignored by its supposed adherents. (That’s my summary.)
"In 1987, Robert Bork was denied confirmation to the Supreme Court because his originalist beliefs were deemed a serious threat to constitutional rights," writes Erwin Chemerinsky. "Originalism is no less dangerous for those rights today."
Almost everything Prof. Chemerinsky says here about originalism is wrong. A thread. 1/6
Amy Coney Barrett is a threat to reproductive freedom. #ThePeoplesSeat
“under the original public meaning of the Constitution, it would be unconstitutional to elect a woman as president or vice president until the Constitution is amended.”
This is not an honest argument. "under the original public meaning of the Constitution, it would be unconstitutional to elect a woman as president or vice president until the Constitution is amended. Article II refers to them with the pronoun “he,”
Yes, actually, we want to be bound by understandings of rights from centuries ago, because that's when they understood rights. If we were constituting now, you'd purportedly have a right not to be offended, for example.
I think that Erwin Chemerinsky's desperately familiar argument here entails simply that we ought not to have a written Constitution or amounts to the direct claim that we do not have a written Constitution.