Originalism, the school of constitutional interpretation currently modish among conservative lawyers and judges, is not so much an idea as a legal-industrial complex divided into three parts—the academic, the jurisprudential, and the political. In its first part, originalism is an academic pursuit, one that a large number of law scholars have embraced with gusto. A […]
If they could be strictly Originalist though, I could almost forgive them. I don’t see a real Originalist argument for Presidential Immunity, as just one example.
This is the main issue with so-called originalists. If they dispassionately followed their own philosophy it would be one thing. The law is the law, as written and as intended by its authors. There is a certain undeniable logic to this approach, and I think even if you reject it, it is fundamentally a philosophy that one could respect.
But orientalists never did this. They have constantly engaged in at least as much “legislating from the bench” as other jurists. It is a rare day when we saw a decision where originalism overcame their right-wing ideology.
In practice, originalism is just a rhetorical weapon, and not a serious idea.
If they could be strictly Originalist though, I could almost forgive them. I don’t see a real Originalist argument for Presidential Immunity, as just one example.
This is the main issue with so-called originalists. If they dispassionately followed their own philosophy it would be one thing. The law is the law, as written and as intended by its authors. There is a certain undeniable logic to this approach, and I think even if you reject it, it is fundamentally a philosophy that one could respect.
But orientalists never did this. They have constantly engaged in at least as much “legislating from the bench” as other jurists. It is a rare day when we saw a decision where originalism overcame their right-wing ideology.
In practice, originalism is just a rhetorical weapon, and not a serious idea.
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