Highlighting the distinctions in the two forms of originalism

As most of you may recall, I like to highlight the distinctions between the two branches of originalism: the older branch which I hold to, of original intent, and the newer branch, which is most common these days, of original meaning. These two views often coincide, and they often are mutually exclusive, depending on the facts of the matter.

In Ohio, a court recently ruled on the state’s abortion ban, and I think highlighted these distinctions, and my concerns, quite well. While the Court did use our EP and benefits clause, as well as our DP clause, they focused on a specific popular referendum amendment as well:

“ (B) No federal, state, or local law or rule shall prohibit the purchase or sale of health care or health insurance. (C) No federal, state, or local law or rule shall impose a penalty or fine for the sale or purchase of health care or health insurance.”

Now, under this amendment, original meaning clearly potentially bans any state regulation of any medical procedure, including abortion. That’s the plain language and plain meaning of the language used. However, under original intent, this amendment only exists to prevent the state, locals, and feds (assuming supremacy clause issues are ignored) from fining for lack of medical care or insurance, after all, it was written directly in response to Obamacare.

These two views, both within originalism, create entirely different results. I think this is a good example of where that split is.