A brief primer. Originalism is not a unitary category — there at least three separate originalist approaches, which obviously sometimes overlap but sometimes differ from each other rather drastically. Folks who talk about originalism, pro or con, need to know about these differences. And adherents to “originalism”, especially, need to clarify which of the three schools they consider themselves to be a part of.
….I should add that the three schools (intent, meaning, and understanding) are not terms of my own making; they’re the actual categories used by academic originalists to describe their own movement.
….For example (I’m in troll-feeding mode today!), we have Mark D. Greenberg and Harry Litman, The Meaning of Original Meaning, 86 Geo. L.J. 569 (1998), setting out the precepts of “original meaning” originalism and explaining why it doesn’t necessarily have to sanction “original practices” (practices that were in place at the time a constitutional clause was drafted). New originalism convert Jack Balkin, responding to an originalist critic of his distinction between “original meaning” and “original-expected-application” (original understanding) who says that real originalists don’t admit the difference, points to two major originalism scholars for whom the distinction is central to their work: one liberal (Akhil Amar), the other conservative (Randy Barnett). In his own originalism primer, Legal Theory Blog’s Larry Solum also differentiates between “original intent” and “original meaning”, although his definition of “original meaning” probably lies closer to my definition of “original understanding” (this is probably due to “original meaning” being the second-generation spin-off of “original intent”, but both Balkin and Greenberg and Litman’s expansion of the contours of “original meaning” have elucidated the need for it to split into at least two more theories: “original meaning” and “original understanding (or expected application)”). So while these distinctions are still being hashed out, and certainly, many partisans of one school view their approach as being the only “true” originalism, the fact remains that their are very real and salient splits that I hope will at least be helpfully marked off (though not resolved) by my post.