This intense debate about constitutional theory should come as no surprise to those familiar with originalism’s history. Still others promote a “living originalism” that incorporates progressive ideology, while newer efforts are underway to persuade originalists to abandon their project in favor of, as Harvard Law professor Adrian Vermeule describes it, “a substantive moral constitutionalism.” Others advocate libertarian varieties of originalism that place primary weight on the protection of individual sovereignty when evaluating government actions. A few champion a “common good” originalism that focuses on the Constitution’s telos. Originalists off the Supreme Court are sparring, too. Oklahoma (holding that most of eastern Oklahoma is, under the federal Major Crimes Act, an American Indian reservation). Clayton County (extending Title VII’s prohibition on sex discrimination to sexual orientation and gender identity) and McGirt v. On the Supreme Court, as Alito noted in the same speech, there have been “erroneous elaborations of Justice Scalia’s theories” - a likely reference to some of the Supreme Court’s recent decisions that purport to employ the textualist method, like Bostock v. While the broad ground has been claimed, originalists are now engaged in an intense debate over how to apply originalism and textualism in practice. Speaking to the Federalist Society in November 2020, Supreme Court Justice Samuel Alito offered telling evidence of the ascent: “Consider these two statements by Justice Kagan: quote, ‘We’re all originalists now.’ And, quote, ‘We’re all textualists now.’” It took over 40 years to mainstream both originalism - the notion that a constitutional provision should be interpreted by its meaning at the time it was adopted - and textualism, a form of originalism applied to statutory law. Originalism is ascendant in the American judiciary, all the way up to the nation’s highest court.
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