Rick, even you might be surprised! https://ssrn.com/abstract=3175412 …https://twitter.com/rickhasen/status/1022259737641897984 …
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...no justices are consistently originalist, and their use and deviations from originalism hew to their ideology, not to consistent use of neutral principles.https://www.amazon.com/Justice-Contradictions-Antonin-Politics-Disruption/dp/0300228643/ref=sr_1_1?ie=UTF8&qid=1516904231&sr=8-1&keywords=richard+l.+hasen …
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Rick, obviously we deeply disagree about these issues. I have great respect for you as a scholar, but in my opinion, your book makes many fundamental errors and makes the mistake of looking backwards at Scalia, rather than forward at the potential of originalism.
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Sorry to hear you have those views Larry. I think the best way of knowing the future of originalism is to look at how it has been put in practice by those who purport to use it. And that means the record we have now is Scalia (and Thomas).It is far from principled or determinate.
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I don't doubt that you can construct originalist rules that would be more principled than what Scalia and Thomas have done. But I do doubt that any Justice would follow such rules. I also don't believe that following such rules is mandated by the Constitution, or desirable.
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Communism, er Originalism, cannot fail. It can only be failed.
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False in both cases. For originalism to succeed, several preconditions must be satisfied, including building out the intellectual infrastructure, creating a rigorous methodology, gaining political support, and much else.
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Is there any evidence the founders were originalists in the sense that they intended to constrain future generations to the then-current meaning of the nonspecific language they used? Seems to me they had a broader vision than that.
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1/ James Madison: I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution.
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2/ And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful, exercise of its powers.
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3/ If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the government must partake of the changes to which the words and phrases of all living languages are constantly subject.
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4/ What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense!
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5/ And that the language of our Constitution is already under-going interpretations unknown to its founders will, I believe, appear to all unbiased enquirers into the history of its origin and adoption.
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6/ Letter from Madison to Henry Lee (June 25, 1824), in 9 THE WRITINGS OF JAMES MADISON 191–92 (Gaillard Hunt ed., 1910).
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If I might ask two questions from an interested outsider’s perspective: 1) Aren’t we all “originalists” when it comes to statutory interpretation? In that we think the meaning of a statute in some sense reflects the “original understanding” of the enacting Congress and...
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I wish! Plain meaning textualism is very similar to originalism, but Hart & Sachs style purposivism allows judges to decide on the basis of the purposes of a hypothetical “reasonable legislature” and hence override the plain meaning of the statute.
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A contemporary originalism different from the originalism purportedly practiced by Scalia and desired by the fed soc in hand picking trumps nominees? Maybe call it something different? Not Really Originalism?
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does not change over time? Why should the Constitution be interpreted differently? 2) If originalism, properly applied, often produces conservative outcomes, is that the fault of the theory, or the Constitution? Maybe this 200+ year old document does in fact embed values...
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Obergefell? Brown? Loving? Lawrence? Are natural rights only a conservative concept? What about Kelo and Raich? Two left wing attacks on natural rights with originalist dissents. ObamaCare precedent? A brutal attack on freedom. Not "liberal" in the slightest.
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that tilt conservative in today’s world? Maybe the mistake is expecting it to produce the “right” outcome in these cases?
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