Bradley W. Joondeph (Santa Clara University – School of Law) has posted Originalism, Living Constitutionalism, and Our Current Constitutional Moment on SSRN. Here is the abstract:
This essay serves as an introduction to the Santa Clara Law Review’s 2026 symposium, “The Changing Landscape of Constitutional Interpretation and Its Impact on Immigration Law, Reproductive Rights, and Education Law.” It proceeds in four parts. Part I explains the political background to originalism’s emergence as a theory of constitutional interpretation (with a recognizable brand name) in American constitutional discourse. Part II describes the reaction to this emergence, and how originalism evolved in turn. Specifically, it outlines the central originalist theory that predominates today, “original public meaning originalism,” and contrasts it with living constitutionalism. Part III then provides some thoughts on the current, real-world consequences of this contest between constitutional theories. It explains (1) that, at least in practice, originalist and nonoriginalist theories have started to converge, and that the outcomes they produce may not differ as much as many presume; (2) that no current Supreme Court justices are truly, exclusively originalist; and (3) how originalism relates to the recent disruptions in some well-established constitutional understandings. Finally, Part IV offers a coda on the degree to which original-public-meaning originalism has captured our current constitutional moment.
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