A guest blogger on Balkinization:
My essential pragmatism, furthermore, warns me against any theory named “originalism.” The history of constitutional interpretation demonstrates that immoral (or more politely non-aspirational) outcomes repeatedly stand on refusals to let the meanings (or extensions, or applications, etc) of words change over history, rather than the opposite. For example, I think that most lay persons are unpleasantly surprised to discover that courts enforce only an archaic, technical, narrow meaning of double jeopardy, the right against self incrimination, habeas corpus, and other basic protections against government over reaching. In sum, for an aspirational constitutional doctrine, the default should be modern meaning; the exception should be originalism. (I have argued for one exception, “promise” in Art. I, Sec. 8, cl. 8 is commonly given a modern incorrect reading– but that error is not made because of a conscious decision to use modern language. See Malla Pollack, What is Congress Supposed to Promote?, 80 Nebr. L. Rev. 754 (2001)).