Subject: Re: Especially for Albaby
I appreciate the link, but I don't think it's a very strong argument. That's not to say I agree with originalism (either in theory or as practiced by FedSoc jurists). Just that this isn't much of a criticism.

It's mostly - almost entirely - tethered on the observation that Originalist interpretation of the constitution doesn't often match up with Madison's positions. Which is a very weak criticism.

First, Madison isn't conclusively authoritative. He wasn't the only author of the text of the Constitution, or of the Bill of Rights. He certainly wasn't the only Founder, wasn't the only author of the Federalist Papers, or any of the other documents that originalists think are important. Many of the views cited in the article are his views on substantive matters affecting society and not constitutional text, and many of the views he did have on the constitutional text were contested even at the time. One of the nice things about the musical Hamilton is how well it illustrated that even the top-tier Founders disagreed bitterly about what the document they had just drafted meant. Originalism doesn't mean "What Would Madison Do?". It is the belief that any exercise in interpreting the text should be based primarily (or almost exclusively) on trying to figure out what the text would have meant at the time it was adopted, and that might mean something other than what James Madison believed.

Secondly, FedSoc judges don't think the Ninth Amendment shouldn't be given meaning. They just don't think it should be given meaning beyond what it actually says - namely, that the enumeration of rights is not to be used as an interpretative argument against the existence of other rights. Originalists completely honor that. I'm unaware of any FedSoc judges that ever say, "well, I am going to apply expressio unius est exclusio alterius to the Constitutional rights." What they don't do is look to the Ninth as a textual source of any other rights. Bork's intemperate comments aren't a repudiation of that, but are more properly understood as a repudiation of the countervailing idea that the Ninth Amendment provides an independent source for judges to find rights.

There are plenty of criticisms of Originalism, but I don't think this really adds much to that scholarship.