Ken Levy, law professor at LSU Law School, makes a strange case against originalism in his New York Times editorial, “The Case Against Originalism.”
First, the setup:
Textualism says that when interpreting the Constitution, judges should confine themselves to the words of the Constitution. Originalism says that if the words are at all unclear, then judges need to consult historical sources to determine their meaning at the time of ratification, and the correct application of these words to new cases should clearly follow.
Here’s what I call the Shakespeare test. I substitute “Shakespeare play” and related words for the “Constitution.” The point is simply to judge whether, and to what extent, a proposed method of reading the Constitution differs from what we’d use when reading something more familiar. (It doesn’t need to be a Shakespeare play. It could be a baseball rulebook, or a math textbook, or the newspaper. Whatever.)