Antonin Scalia — the King of Originalism — should have taken originalism to the grave with him. Not that the worms deserve either. Intellectually, originalism is the quintessential make-it-up-as-you-go-along, “White Guy” argument. “But the rules! But the rules!” says the one who wrote the rules, then broke them repeatedly then got upset when others threatened to write the rules instead. Even on its surface, originalism stinks. Scratch that surface and you unleash a whole sewage system of awfulness.
Never mind the fact that the King of Originalism, Scalia, set originalism aside to write the decision that will most define him: Bush v Gore. Not only did he set originalism aside to write that bit of flaming horse shit, he made Bush v Gore a one-time deal. It followed no rules then made itself unique — all in one neat, corrupt, decision.
Originalism insists the Constitution is stuck in time; therefore so is America. If not for those nasty amendments, America would still be a bastion for rich, white, Christian land owners. Like in the 1780s. The opposite view sees the Constitution as a living, breathing, dynamic document (designed) to serve America’s living, breathing, dynamic population. You know, what that famous Republican president called “Government OF the People, BY the People and FOR the People.”
Originalism is about controlling the mythology and pretending it’s the law. It’s Magical Thinking written in lawyer font.
It’s about pretending words say things they don’t.
It’s all about cynicism.
The only correct response when some right wing nitwit hauls originalism onto the table is “Oh, shut up”. The goal is to make you chase them down their rabbit hole because that’s what originalism is: a damned rabbit hole.
“Oh, shut up.” See? Easy!