Randy Barnett on originalism
Prof. Barnett's points, as always, are concise and sharp.
"If it was genuinely not possible to identify the meaning of language at a previous point in time, then old contracts could not be enforced according to their meaning at the time of their formation (which is what the law of contracts requires), old statutes would be a mystery and impossible to follow or enforce, and classic Supreme Court opinions would be impossible to understand."
We can go even farther. There are, in Arizona, the "Baca Float Ranges," large tracts of land given to the Baca family in settlement of a land grant to them from the King of Spain. Court there had to carry out an agreement made prior to the Framing, and in another language.
"The only language that is claimed to be inscrutable mystery to lawyers (but not historians) is the foundational law provided by the U.S. Constitution. How are we lawyers able to follow the 200+ year-old-opinions in Marbury, Gibbons and McCulloch, but not the Constitution itself, written a mere 30-40 years earlier? Has anyone seriously suggested that lawyers need to consult historians to tell them the communicative content of these precedents?"