TEXT, HISTORY, STRUCTURE:

Philosophically, to grossly oversimplify, Originalists hew closely to the meaning of constitutional and statutory provisions as understood when written into law, while Living Constitutionalists believe our founding document must adapt with the times and accommodate contemporary developments, while remaining true to its spirit.

In baseball terms, Originalists are National Leaguers who insist on the tradition of pitchers picking up a bat, while Living Constitutionalists prefer the American League and its designated-hitter rule, which complies more fully with the current slugging-happy zeitgeist.

Yet, as Originalists came to dominate the conversation, at least in constitutional terms, a new school of liberal legal thinking began to emerge. After all, folks like Amar and Balkin reasoned, if legal conservatives could unearth and embrace, say, the rationale underlying passage of the Second Amendment in the service of enforcing gun owners' rights, why couldn't legal liberals do the same for, say, the Fourteenth Amendment and affirmative action?

"That's a ground on which political liberals can proudly stand," Amar says, "precisely because nearly every patch of constitutional text came from four generational spurts in which [members of] the prevailing group were the liberal nationalist egalitarians of their day: the Founders, the Reconstruction Republicans, the early twentieth-century progressives, and the 1960s racial reformers."

Amar, in particular, revived the spirit of liberal Justice Hugo Black, one of the original Originalists, albeit from the Left, in an effort to reclaim text-faithful interpretations from the conservatives.

This tendency was on fine display in the ObamaCare debate, where Amar--fictionally standing in for Solicitor General Donald Verrilli, who argued the case before the Court on behalf of the administration--urged the justices to consult the Constitution's "text, its history, and its structure as glossed by subsequent practice and precedent." Responding to the conservative argument that a mandate to purchase health insurance could result in a mandate to eat broccoli, Amar cited an older mandate to buy... muskets: "The Militia Act of 1792 had a similar mandate, obliging Founding-era Americans to privately procure muskets, ammo, pouches, and so on," Amar observed. "George Washington signed onto that law. And no one at the time said that mandates such as this were somehow intrinsically improper regulatory tools."

Similarly, Elhauge, in a Daily Beast piece entitled "Don't Blame Verrilli for Supreme Court Stumble," urged legal liberals to more "squarely attack the challengers' framing of the case," citing a 1790 law "requiring shipowners to buy medical insurance for seamen" and a 1798 statute "requiring seamen to buy hospital insurance for themselves." Root the arguments in precedent, Elhauge contended, and you might just convince a few of the swing justices.

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