When you know the outcome you want, you have to adapt the theory to support it

Publius has some cogent thoughts about the way the Supreme Court will view the cases on racial balancing in the public schools which are now before it [it's pretty clear they are going to rule that race-based selection criteria are unconstitutional]:

... The idea is that originalism tends to analyze issues at different levels of generality depending on the context. In other words, it moves up and down the “ladder” strategically depending on the issue.

Take desegregation. Lemieux is of course right that it’s impossible to argue that the original understanding of the framers/ratifiers of the 14th Amendment was to eliminate all racial classifications (e.g., schools didn't integrate in 1868). Also, for similar reasons, I suspect few of them thought the new amendment banned affirmative action-type preferences that disadvantaged white people because respectable opinion in 1868 wouldn't have even conceived of such policies (outside of crazy "radical" Massachusetts anyway).

So, because the policy preference (no racial classifications) wasn’t specifically contemplated, up the ladder they go. And the original understanding of the 14th Amendment gets defined at progressively higher levels of abstraction until it can be read as prohibiting all racial classifications.

With abortion, however, things are different. At a very high abstract level, the 14th Amendment (or perhaps the 9th) is about individual freedom and could conceivably justify Barnett-style libertarianism. But, it’s pretty clear that neither the Bill of Rights nor the Second Bill of Rights (the Civil War Amendments) were understood to legalize abortion. So, down the ladder the originalists go. In the abortion context, they hug the ground tightly and point out that the specific policy in question was not contemplated.

And all this is assuming that the Scalia/Thomas camp thinks originalism is even the proper methodology to apply. Sometimes they just ignore the framework entirely. Of course, judges (rightly) apply different methodologies to different contexts. But the problem with originalism is its conceptual arrogance — its proponents claim it's the ONLY way to look at the world. Unless it isn’t - and it's often not. And that's why originalism opens itself up to accusations of hypocrisy more than other interpretive theories.