Thread by @MaxKennerly

A good article about the openly activist nature of Barrett's "originalism." We've already seen it in practice from her circuit court opinions, where she uses it—like all "originalists"—to produce the result she wants. For example, let's talk about the Second Amendment.
/1

https://twitter.com/MatthewSitman/status/1314223218828423174

In DC v Heller, the "originalists" faced a problem: during the constitutional convention, there were several proposals (like from NH's delegation and minorities in MD, PA & MA) to protect individual gun ownership. They were all rejected.

Excerpts from Stevens' dissent. /2

Scalia's response, writing for the majority, was that it was stupid to look at rejected constitutional proposals. Further, the *rejected* NH/MD/PA/MA proposals actually somehow represented a prevailing view of an essential legal right the Framers didn't bother to write down.🤷‍♂️ /3

Fast forward 11 years and we have Barrett's dissent in Kanter v Barr, which finds it persuasive <drumroll> that the NH/PA/MA amendment proposals were rejected. Y'know, the same ones that Scalia said should not be considered at all, except as somehow reflecting a majority view.
/4

That's one of the problems with Scalia's & Barrett's "originalism:" it's a veneer empowering judges and justices to pick and choose whatever result they want. Bits and pieces of the historical record are selectively chosen and interpreted depending on the preferred outcome. /end