There was a time when a handful of legal scholars advocated for an originalist methodology that, if applied honestly, would significantly constrain judicial discretion even in hard constitutional cases. Professors Raul Berger and Lina Graglia, among others, argued that 1) the original meaning of the Constitution does not change; 2) that judges are bound by that meaning; and, most crucially, 3) judges should not invalidate decisions by other political actors unless those decisions are clearly and obviously inconsistent with that original meaning. If the original meaning of the text and history in question were subject to reasonable disagreement, then judges had to defer to other governmental officials.
There are obvious pros and cons to this method of constitutional interpretation. The benefits include leaving most hard decisions to more accountable governmental officials than life-tenured federal judges. The down sides are exactly the same; leaving most hard decisions to non-judicial officials who may well abuse their power and tread on the rights of minorities and other traditionally disadvantaged groups. Wherever one comes out on that balance, this brand of originalism was transparent, coherent, and relatively easy to apply in most cases. If the plaintiff did not meet a heavy burden of proof demonstrating the challenged law or decision plainly violated clear text or uncontested history, the plaintiff would lose the case and the challenged law would be upheld.
No Supreme Court Justice has ever applied this form of originalism. Even the most ardent supporters of Justice Scalia's and Justice Thomas' forms of originalism could not say with a straight face that either one consistently applied a strong deferential attitude to other political actors absent clear text or uncontested history. Their votes in affirmative action, takings, commerce clause, sovereign immunity, standing, and speech cases among many others cannot be reconciled with strong deference to original meaning or text even if smart academics can make creative arguments that these votes are not necessarily inconsistent with original meaning.
There are few legal scholars today willing to embrace a strong deferential theory of originalism (Michael Paulsen and Richard Kay might be exceptions). Instead, the way most legal academics push for originalism today was neatly captured by Professor Larry Solum in his recent remarks to the Senate Judiciary Committee during the Gorsuch hearing and his prepared written statement (consistent with his longer and more detailed scholarship on the subject).
Professor Solum maintains throughout his statement that much more often than not the Supreme Court has acted in an originalist fashion, meaning in a way "that is consistent with the original public meaning of the text." He claims that for "most of American history, originalism has been the predominate [sic] view of constitutional interpretation." He argues that the Justices should not amend the text "on a case by case basis" and he decries those judges and scholars who adopt a "living constitution" approach because doing so is anti-democratic. In his words, the
Supreme Court consists of nine women and men. They are not elected. They are appointed for life terms.... If we must choose between originalism and constitutional text that has been ratified by the representative of “We the People” and a living constitutionalist constitution that is ratified by majority vote of a committee of nine, there is no doubt in my mind about which constitution is the more democratic.Nowhere in his statement, or in his scholarship, however, does Professor Solum try to reconcile this theory with the hundreds of Supreme Court cases that have overturned laws without a serious basis in text or history, nor does he have any real advice to offer judges who are trying to apply an ancient text to modern problems (other than the meaning of the text does not change). In this regard, he and Judge Gorsuch are of similar minds. Although Gorsuch claims to be an originalist, the best he could do during the hearings to define what that meant was to state his belief that "what a good judge always strives to do, and I think we all do — is strive to understand what the words on the page mean. Not import words that come from us, but apply what you, the people’s representative, the lawmakers, have done."
This advice, however, is of course worthless to the Justice trying to decide whether obscenity is "speech," mandates are "commerce," how long Congress must be in "recess" to justify a Presidential appointment, or how to balance the speech rights of corporate persons against the government's interest in fighting corruption, along with hundreds of other examples of contemporary constitutional disputes where just trying to decide what the "text" means will be absolutely no help.
According to a number of academics, including Keith Whittington of Princeton, Solum, and Randy Barnett, a self-proclaimed originalist scholar at Georgetown University, ascertaining what the Constitution meant to the people at the time is called "interpretation" but this original meaning often runs out for judges faced with real cases. When that occurs, judges must engage in an enterprise called "constitutional construction" to apply the text to changing circumstances. Writing with Evan Bernick, Barnett recently fleshed this out a bit by suggesting that in most constitutional litigation, judges must try in good faith to apply the "spirit" of the text to modern problems.
Despite wearing the originalism labels on their sleeves, both Barnett and Bernick concede that the major "originalist" aspect of good faith construction is simply that the framers would have wanted judges to try and decipher the "spirit" of the text in good faith. In their own words, "judges should wield their discretionary power in a manner that is consistent with the 'supreme law of the land,' consisting in both its letter and its spirit, resolving cases on the basis of the spirit where the letter fails." Of course this is true but it does not limit judicial discretion, because the "spirit" of the vague constitutional provisions that lead to most constitutional litigation will be broad enough to justify virtually any result a judge or justice wants to reach.
For example, both the the text and the "spirit" of the first amendment obviously include protection for freedom of speech and religion, the text and "spirit" of the commerce clause allow Congress to regulate our national economy, and the text and "spirit" of the eighth amendment prohibit "cruel and unusual" punishments. But there is little in either the text or the "spirit" of those provisions that will provide guidance to judges who must decide what legal standards should apply when celebrities are the victims of libel, whether Congress may criminalize local activity that substantially affects the national economy, or whether death by legal injection is cruel and unusual punishment. Only the application of values, politics, and perspectives can resolve those kinds of hard questions, and I don't read Barnett. Berrick, Solum, or Gorsuch to suggest that the values that matter are those held by the people of 1787. As Gorsuch said, being an originalist does not mean returning to the days of the horse and buggy, and I assume no one wants modern day constitutional interpretation to center around the values of people who owned slaves and thought women were the property of their husbands.
During his hearing, Gorsuch cited with approval Justice Kagan's testimony at her own hearing that "we are all originalists." So Justice Kagan is an originalist and so is Justice Thomas but they disagree on virtually every major disputed question of constitutional law. The only way this makes sense is to
define the term originalism in a way that everyone accepts but will do no work for a Justice who has to cast a vote in a real case. A strong presumption in favor of upholding legislation unless original meaning clearly shows the challenged law is unconstitutional does a lot of work and reduces much judicial discretion but, unlike the original originalists, Gorscuch, Barnett, Solum, Bernick and Kagan are unwilling to adopt such a presumption. Without it, originalism is here, there, everywhere, and nowhere.