Originalism is Bunk

 Originalism was a fringe legal theory when it was developed beginning in the early 1970s. It arose in reaction to the perceived excesses of the Warren Court, which had worked a legal revolution in the 1950s and 1960s with freewheeling decisions on the rights of criminal defendants, civil liberties and voting rights — among other issues — that conservative critics said were grounded in the majority’s policy preferences more than in the Constitution itself.

Among those developing an alternative, and supposedly more legitimate, legal theory was Robert H. Bork, then a Yale Law School professor. In a 1971 Indiana Law Journal article that was to become famous during his failed Supreme Court confirmation hearings 16 years later, Bork first laid out what came to be called originalism. (The term was coined by a liberal critic, Stanford Law professor Paul Brest.) “Where constitutional materials do not clearly specify the value to be preferred, there is no principled way to prefer any claimed human value to any other,” Bork wrote. “The judge must stick close to the text and the history, and their fair implications, and not construct new rights.”