Last week, Cass Sunstein wrote a column criticizing originalism and warning against an overly originalist nominee to the Supreme Court. A key excerpt:

For example, originalism could easily lead to the following conclusions:
1. States can ban the purchase and sale of contraceptives.
2. The federal government can discriminate on the basis of race — for example, by banning African Americans from serving in the armed forces, or by mandating racial segregation in the D.C. schools.
3. The federal government can discriminate against women — for example, by banning them from serving in high-level positions in the U.S. government.
4. States are permitted to bring back segregation, and they can certainly discriminate on the basis of sex.
5. Neither federal nor state governments have to respect the idea of one person, one vote; some people could be given far more political power than others.
6. States can establish Christianity as their official religion.
7. Important provisions of national environmental laws, including the Endangered Species Act and the Clean Water Act, are invalid.
The president should not nominate, and the Senate should not confirm, anyone who subscribes to these seven propositions — and originalists have to do real work to explain why they reject them.

Mike Ramsey and Mike Rappaport have both responded, with Ramsey pointing out that “not much work is needed” to explain why most of these consequences will not come to pass.

Mike Rappaport, meanwhile, asks: “Even if Sunstein were right about this, what would that prove?” He argues that various types of nonoriginalism could “easily lead” to these conclusions as well. “In fact, to the extent that nonoriginalism is about pursuing discretion on the part of judges to pursue what a good constitution would be – which is a big part of nonoriginalism – nonoriginalism clearly would allow these results.” (There is much more here.)

That provoked an extended response from my sometime co-author Steve Sachs on Twitter, which he has cleaned up so that I could re-post it here.

The “Originalism Causes Bad Things” argument that Sunstein makes has always bothered me.

Read more at The Volokh Conspiracy