There was an Originalism conference at Penn this weekend. I didn't go, but I e-mailed one of the participants, who shall remain nameless. I'm told that there was a great degree of criticism against originalism as a judicial philosophy, and that even Randy Barnett conceded that most of the action in disputes about the Constitution's meaning comes from non-originalist "construction," as they call it. I write for two reasons. There are two points I want to bring up, which I shall list in separate mails.
To what extent is the whole originalism thing among law professors going to be appropriately seen for what it is: just another fad. It was only 5 years ago (or so) when we were told "we are all originalists now." But soon, won't we be hearing this again, like we heard in the eighties: "originalism is dead" (having been defeated in intellectual combat). The way law professors do jurisprudence as a social group is prone to fads: law and economics, law and literature, sociological jurisprudence (law and empirical behavioral science), critical legal studies (law and ultra-left political theory). To what extent are we reaching the point where originalism as intellectual phenom in law schools simply amounts to lawyers discovering and playing with the subject of "law and history."
Question number one: Is it a fad, and is it dying?