Despite occasional denunciations from its perceived critics on the bench, originalism remains still the coin of the realm of legal argument. As Judge Posner (no friend to originalism) wrote decades ago, originalism was and is the orthodox mode of legal justification.

And despite occasional betrayals from the perceived friends of originalism on the bench, they too are doing better than one might think. But to see this we need to recognize three distinctions …

When we draw these distinctions, we can see that originalism is in fact central to the practice of American courts, including the Supreme Court—and that they’re no worse at it than at anything else they do.

Like the person who’s a vegetarian not because they love animals, but because they hate plants, I take this view not because I’m an optimist about originalism, but because I’m a pessimist about everything else done by our courts.

[The entire 90-minute discussion is included at the end in a YouTube video. It’s an interesting discussion in his written text, although I would argue against Sachs’ proposition that the framers of the Constitution defined rights in ‘general terms’ to allow for ‘future evolution’ in scope and meaning. I would argue instead that the framers intended the rights protected in the Constitution in very specific and direct context, and anticipated a federal government that wouldn’t be large enough to intrude meaningfully on them. — Ed]