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The futility of originalism

February 18, 2016

Eric Posner has a good article on Scalia’s originalism:

In fact, the historical sources are rarely clear, and foundational questions about how originalism is supposed to proceed—including how much weight (if any) should be given to post-founding judicial precedents that deviate from the original understanding, and how broadly constitutional principles like “due process” and “equal protection” should be understood—are irresolvable. One of the original originalists—Supreme Court Justice Hugo Black—was a stalwart liberal. A liberal Yale law professor has mischievously proclaimed himself an originalist and shown how originalism can lead to liberal outcomes. Scalia’s interpretation of originalist sources has been frequently criticized, and in notable instances when he could not bend them to his will, he simply ignored them. His belief that campaign finance laws and commercial speech regulations violated the First Amendment would have surprised the founders, for example.

Constitutional originalism misunderstands how a legal document could be understood by its contemporaries. They hide the interpretive assumptions they bring to texts, somewhat reminiscent of fundamentalists. Ironically, and despite that, Scalia couldn’t seem to imagine that those with different interpretive philosophies were anything other than scoundrels.

For all those who want to use the rejection of Bork to justify any and all politically motivated feints around judicial appointments, Ed Brayton reminds us how extreme Bork was. As example, he did not believe the Constitution protects speech generally. In Bork’s own words:

Constitutional protection should be accorded only to speech that is explicitly political. There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary, or that variety of expression we call obscene or pornographic. Moreover, within that category of speech we ordinarily call political, there should be no constitutional obstruction to laws making criminal any speech that advocates forcible overthrow of the government or the violation of any law.

The senate that rejected Bork did a good duty for our nation.

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