JOHN O. MCGINNIS:
“…The nation’s legal culture ultimately determines how the Constitution is interpreted. When originalism had fallen into desuetude, the Warren Court decided cases without substantial, if any, consideration of very plausible originalist positions. It did not even deign to respond to overwhelmingly powerful originalist arguments, such as those made by Justice John Marshall Harlan in dissent in Reynolds v. Sims. That kind of performance is no longer conceivable because originalism has established an important foothold in the legal culture.
This new culture is not only a consequence of having originalist judges but also of having originalist scholars analyzing the meaning of constitutional clauses. There is a necessary division of labor between judges and scholars. Judges cannot generally be expected to do original research. They must rely on the work of experts, transmitted to them through the adversary system. We have seen this collaboration transform the law before: Justices translated the free market antitrust theories of scholars like Robert Bork and Richard Posner into a newly coherent doctrine.
Moreover, one of the obstacles to the growth of originalism has been the claim that much of the Constitution is indeterminate—that is, that its key provisions, like the Due Process Clause and Equal Protection Clause, do not a have a meaning sufficiently clear to generate legal decisions. But as the culture of originalism gains hold, scholars are showing that the inability to define the meaning of these clauses is not due to their indeterminacy but our ignorance of their legal meaning. Modern originalism recovers much knowledge that was lost during its years of abandonment…”