Here is the updated version of my piece, “Back to the Future of Originalism.”
In the blink of the jurisprudential eye, the Affordable Care Act went to the brink of unconstitutionality and back. Along that rapid journey, lawyers and scholars from across the philosophical spectrum, who were so focused on developing, refining, and advancing constitutional arguments at breakneck speeds, were often unable to pause, and appreciate the monumental importance of what was happening. This essay, as part of a symposium issue for the Chapman Law Review, takes a step back, and draws lessons from The Health Cases about the link between originalism and the state of constitutional law post-NFIB v. Sebelius.
First, I analyze the significance of the decision not to advance an originalist challenge in NFIB, but rather to turn to appeals to popular constitutionalism to move the argument from “off-the-wall” to “on-the-wall.” Second, I consider the effect that social movements, such as the Tea Party, had on shifting our “constitutional gestalt.” Third, I advance a theory about how NFIB has shown that it is possible to advance originalism without using originalism. Fourth, I conclude by speculating about the vitality of originalism after NFIB.