And I have very little hope that I will convince you that your view of originalism and originalist judges, although supported by reasons, is ultimately wrong. I do hope that you would recognize that a powerful case has been made, and that the debate is unresolved.https://twitter.com/rickhasen/status/1022264902851866627 …
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I recognize the power of the realist take, but in my view there is false necessity operating in this domain. We can create a depoliticized, more formalist legal culture. Doing so requires both an intellectual infrastructure and support in politics.
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You two should bet!
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Hee hee!
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Rick, did you mean “do not.”
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Do you reject the Fixation Thesis, the Constraint Principle, or both? Or do you have some other objection?
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Better to take this off Twitter. I’ll try to send you some thoughts when I can carve out the time
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1/2 Of course. I’m sure you have a thoughtful position. But your work is an exception to my general impression, which is that very few progressive scholars have engaged these issues deeply and with an open mind. There are similar problems on the right.
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2/2 And I fear we are entering a period of dogmatism, resulting from the polarization and politicization of constitutional theory. This would be tragic. We need to listen with respect and an open mind. These issues are hard not easy.
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Apologies if this was covered earlier, but aren't there just two parallel debates, one normative about the best constitutional theory, the other descriptive/predictive/ explanatory about how particular judges behaved (Scalia) or will behave (BK) and why?
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Yes, and my position is normative, not descriptive.
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“Originalism” [checks wrist watch for some reason] It’s 2018 — at least in the world I live in. Isn’t that “Originalism” stuff that weird cross between a seance and mind reading? Ya know: knowing what people dead for 240 years thought?
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You might consider reading this article. It is short and accessible and directly addresses your point. https://ssrn.com/abstract=3175412 …
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I’ve previously read quite a bit on the topic, actually. Thus my comment. Offered in the spirit of IMO and YMMV. I will read the article though.
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Thank you! It is fun to read, even if you disagree!
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Maybe conservatives should abandon Originalism and instead practice conservative judicial activism. Instead of merely reversing Roe v. Wade, maybe they should find a "right to life" in the penumbra of the 14th amendment and mandate abortion be illegal in all 50 states.
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I do not understand why progressive scholars could possibly prefer conservative living constitutionalism. The only sensible reason would be the ultra-realist view that cannot constrain. But then there is no reason to engage in constitutional theory.
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