Here is a video lecture in which I discuss the Great Debate--Originalism vs. The Living (Common Law) Constitution:
Duncan Originalism vs Living Constitution:
https://unl.yuja.com/V/Video?v=6827926&node=29033304&a=188047276&autoplay=1
And here are two good short articles on originalism vs the Living Constitution:
Strauss article (link); Sollum Article (link)
Finally, here is a quotation from Justice Gorsuch to the NYT (link) on his view of originalism:
So what originalism is, is just the simple idea that you are entitled to rely on the written words in the Constitution. We the people, the American people, bothered to write it down. Write down the law. It was the first written constitution of its kind in human history. And so when it promises you a right to a jury trial, when it promises you a right to confront your accuser, when the laws enacted promised somebody by treaty certain rights, an originalist, a textualist, will take that seriously. And there’s going to be no pragmatic argument, no argument from efficiency. Nothing that can undermine that. Now, if you want to change the law, there are lawful processes for doing so, but the originalists and textualists, simply put, seek to honor written law.
I like this simple "how the Court views originalism" definition, but what do you do with broad language such as "equal protection" and "privileges and immunities?" Do we allow courts to read their own values and ideologies into the meaning? Do we look to deeply rooted American history and tradition to apply these concepts?
It is eminently logical to argue that the duty of a court is to follow the written law (as opposed to amending or ignoring the written law). But if the Constitution is difficult to amend, should the Supreme Court take upon itself the duty to judicially amend the Constitution, as a matter of constitutional common law, to keep it up-to-date?
