Robert J. Delahunty and John Yoo (University of St. Thomas School of Law (Minnesota) and University of California at Berkeley School of Law) have posted Saving Originalism (Michigan Law Review, Forthcoming) on SSRN. Here is the abstract:
We review Akhil Amar's recent book, America's Unwritten Constitution (Basic 2012), the sequel to his successful and popular America's Constitution (2005). We argue that Amar seeks to cure an imperfect Constitution with creative interpretations that seem to ignore the rigorous attention to text, structure, and history of his earlier work. We make three points. First, we describe Amar’s method in revealing an unwritten Constitution. We use women’s rights as an example of a gap in the written Constitution that Amar corrects with a variety of sources. While we agree with his results as a matter of policy, we argue that, without originalism, Unwritten contains no consistent limits on its sources and methods. Second, we delve deeper into the history of originalism as an interpretive method to show that it is not as flawed, perhaps, as Amar might think. While it might have been conceived as a response to the judicial activism of the Warren Court era, originalism has evolved into a sophisticated approach to constitutional interpretation that does not advance any particular political ideology. Third, we take up the question of instrumental or consequentialist reasons for originalism. We use bargaining theory to explain why originalism could have served as an important aid to the formation and continuation of the Union.
Highly recommended.