As I mentioned in a comment in one of Mr. Hanley’s threads, I hope to complete an essay one of these days — shameless working title, Two Dogmas of Originalism — in which I will argue that textualism and intentionalism, the two main flavors of originalism, are both predicated on serious misunderstandings about the nature and use of ordinary language and its first cousin, legal language. As doing so requires some foundational work in philosophy of language as well as a dollop of philosophy of law, don’t hold your breath waiting for me to put in the effort required. Hope springs eternal, but pragmatists hedge their bets.
In the meantime, however, I’m going to take the liberty of linking to and thus resurrecting three posts from the now defunct blog Left2Right by my cyber-friend and erstwhile political sparring partner on that blog, Don Herzog. Usual disclaimers about me not agreeing with everything therein, about Mr. Herzog perhaps not even agreeing, himself, with everything in his own five year old blog posts — gawd knows that’s often true in my case — etc., etc. Think of them, as it were, as snapshots from cyber-space and cyber-time.
Nonetheless, Mr. Herzog clearly articulates several of the fundamental and, I believe, insurmountable problems with originalist theories of judicial interpretation. (The truly industrious will even find a familiar name or two in the comments sections.) Herewith, therefore, Originalism in Constitutional Law: Part One, Part Two and Part Three.