Originalism\u27s Implementation Problem

Originalism has received a great deal of recent, mainstream attention. President Donald Trump\u27s nomination of three justices to the Supreme Court amplified discussions of their judicial philosophies during and following their confirmation proceedings. Supporters of these nominations highlighted the nominees\u27 originalist credentials, arguing that originalism was the dominant approach to constitutional interpretation. In the academic sphere, volumes of articles and books set forth originalist theories and methodology. Its academic proponents also refer to it as the dominant form of constitutional interpretation—often asserting that opponents of originalism have failed to enunciate a coherent alternative theory. Some argue that originalism (at least, an inclusive version of the theory) is our constitutional law, and that this in itself is a reason to follow originalism, as judges are bound to follow the law. Early originalists focused on determining the meaning of the Constitution by determining the original intentions of the founders. Today, though, most originalists take the approach that the meaning of the Constitution is determined by the original public meaning of its provisions at the time of its enactment. This latter approach to originalism, sometimes referred to as new originalism, or original public meaning originalism, is now the dominant version of the theory. This Article focuses primarily on original public meaning originalism, particularly in Parts III and onward