Douglas Ginsburg has posted Originalism & Economic Analysis: Two Case Studies of Consistency and Coherence in Supreme Court Decision Making, 33 Harvard Journal of Law & Public Policy 217 (2010), on the Internet. Here is an excerpt:
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To be sure, the Court has a long way to go before it can be said to have restored the Constitution to its originally understood meaning, but even now its approach to constitutional interpretation seems ever less susceptible to the charge that the opinions of the Justices reflect not their best thinking but rather how well their breakfasts agreed with them. It is no small achievement that on a question of first impression, such as the meaning of the Second Amendment, all the Justices would join in the search for the original meaning of the text. From the system of federalism rooted in the Tenth and Eleventh Amendments to the rights of criminal defendants under the Fifth and Sixth Amendments, original meaning increasingly appears to be the default mode for addressing constitutional questions. This change speaks also to the increasing role of originalism within the overall legal culture. The Supreme Court’s originalist opin‐ ions guide the lower courts in resolving constitutional disputes and thereby amplify the Court’s originalist voice. More impor‐ tant, in the long run, those opinions help shape the thinking of law students as they are first exposed to constitutional law. On the other hand, originalism has yet to penetrate some parts of the Constitution, where, as a result, judicial policymaking re‐ mains unconstrained by positive law. The Fourteenth Amend‐ ment guarantees of Equal Protection and of Due Process of Law come foremost to mind. Those clauses have been sub‐ jected to so much abuse (think of Baker v. Carr and Roe v. Wade) that recovering their original meanings poses a special chal‐ lenge. Nevertheless, there is no denying that originalism has fostered throughout the legal profession a new respect for en‐ acted law—particularly for the Constitution as law—and for fidelity to texts of all sorts. The role of judges in the making of legal policy has been concomittantly limited as a result.
Some observers have suggested, nonetheless, based mostly upon the Heller decision itself, that originalism is a sham. The Justices, after all, were sharply divided notwithstanding that each side couched its opinion in originalist terms. Moreover, as Stuart Taylor has observed, “even though all nine justices claimed to be following original meaning, they split angrily along liberal‐conservative lines perfectly matching their appar‐ ent policy preferences, with the four conservatives . . . voting for gun rights and the four liberals against.”64 According to this view, the search for the original public meaning of the Consti‐ tution does not constrain judges; it merely provides a new set of materials from which they may pick and choose, as they used to scavenge through legislative history, in order to reach a personally preferred conclusion.
This cynicism is unwarranted. To be sure, policy preferences may lurk behind a judge’s decision about whether to adopt an originalist or a nonoriginalist approach to interpretation in a particular case. Notably, originalism has had its most dramatic effect, with the Justices unanimously revising earlier prece‐ dents, in cases concerning the rights of defendants. This is an area where originalist research and liberal political preferences happen to coincide. It may be that some Justices are committed to originalism as a normative theory while others resort to it only when they like its implications. But this suggests that originalism actually is constraining. Otherwise, the Justices not committed to originalism would fashion original‐meaning ar‐ guments to bolster their position in every case and thereby pre‐ clude the charge that in some cases they are departing oppor‐ tunistically from the original meaning of the Constitution.
Indeed, originalism has become more constraining as original‐ ist methodology has become more objective over time. Early originalist scholars encountered the legitimate criticism that their search for an elusive “original intent” was bootless because the subjectivity of “intent” made it malleable, like the search for “congressional intent” in the entrails of legislative history. As a result, the historical search has been refined and objectified to seek not the original intent of the Framers but the original public meaning of the words in the Constitution. As the depth and breadth of this scholarship increases, the search through historical materials will become ever less discretionary for the Justices.