Originalism in baby steps:

1. The Constitution is law. Its provisions--including its amendments--should be interpreted in accord with the meaning they bore at the time they were adopted. (Everyone has this sound intuition with respect to what "natural born Citizen" means.) 1/
2. The Constitution, as amended, sets forth bounds on government power. Originalists dispute among themselves precise limits of those bounds. But all agree what within those bounds the democratic processes are free to operate to revise policies to adapt to changing circumstances.
3. It is the modern project of the "living Constitution" that aims to prevent democratic processes from adapting to changing circumstances. It seeks to *entrench* favored progressive policies--e.g., on abortion.
4. At bottom, the alternative to originalism is *just making it up*. That's tempting, to be sure, as it's a way to get the results you want, irrespective of what Constitution says and of how it can fairly be interpreted.
5. How do we know what Constitution means when it says that president must be at least 35? Because originalist inquiry tells us that public meaning of age at time of Framing was in base 10, not base 6 or base 12. (Yeah, innumerates won't get this.)
6. Contra Left's claim, there are no "clear" provisions of Constitution that don't ultimately depend on originalism for their clarity.
7. If you're still in doubt, go ahead and take my "Are You an Originalist?" test. eppc.org/publications/a…

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More from @EdWhelanEPPC

15 Oct
Did Dems ask ACB a single question, or make a single comment, about her landmark ruling on Title IX protections for accused students? eppc.org/barrett/#Barre…

If so, I missed it. In any event, little or no focus on this shows how unpopular Left's contempt for due process is.
I also missed any Dem criticism of ACB for joining opinion on en banc rehearing that was "skeptical" of panel ruling against anti-eugenics abortion statute. eppc.org/barrett/#Barre…

Left has faulted eugenics label, but Barrett used it w/o criticism at hearing.
Little or no Dem questioning of ACB's abortion-related rulings as CA7 judge. eppc.org/barrett/#Barre…
R questioning elicited ACB's ruling *allowing* bubble-zone ordinance for abortion clinics.
Read 5 tweets
14 Oct
In Senate Dems' *16th* session of questioning, when hardly anyone is listening and Dems have already surrendered, Coons finally makes competent effort to explore what ACB's originalism might mean.

ACB very effective in response.
Coons now is peddling false accounts of ACB's position on stare decisis.
ACB about to wallop Coons.
Read 5 tweets
14 Oct
It's not clear to me that Whitehouse is right in asserting that financial-disclosure requirements for lower-court judges are different than for Supreme Court justices,
FindTheCourt seems to complain instead about disparity between justices, on one hand, and members of executive branch and Congress, on the other. fixthecourt.com/fix/financial-…
Contra Whitehouse, it appears that justices and lower-court judges use exact same financial-disclosure form: AO10.
Read 6 tweets
11 Oct
Great review by Paul Clement of “The Essential Scalia,” edited by Judge Jeffrey Sutton and me. wsj.com/articles/the-e… via @WSJ
amazon.com/Essential-Scal… 1/
@WSJ Excellent timing for WSJ review of THE ESSENTIAL SCALIA--in print on Columbus Day, day hearing starts on nomination of Scalia clerk Amy Coney Barrett to fill seat of Scalia friend RBG. 2/
@WSJ "A generation of law students raised on Scalia opinions are now filling the ranks of the judiciary and other branches of government.... The book will be especially illuminating to anyone ... who wants to get a sense of where the Supreme Court may be headed." 3/
Read 4 tweets
30 Sep
What a dishonest or incompetent piece by a notorious ex-judge. E.g.: Scheindlin asserts that ACB in 2013 article "repeatedly expressed the view that the supreme court had created, through judicial fiat, a framework of abortion on demand that ignited a national controversy." 1/
ACB mentions Roe *once* in text: "the public response to controversial cases like Roe reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle." Word 'abortion' never appears in article. 2/
Amazing that Scheindlin could take an article in which ACB defends traditional principle of stare decisis and give false impression that article is an attack on Roe. 3/
Read 10 tweets
29 Sep
Democratic talking point against Judge Barrett on ACA is very weak.

Former SG (and former Scalia clerk) Paul Clement, who is on Trump's short list, says nonseverability argument (claim that entire ACA must fall) faces "very uphill battle." reuters.com/article/idUSL1… 1/
Law prof Jonathan Adler, who supported previous lawsuits against ACA, says "case law cuts pretty decisively against the claims made by Texas" and has filed amicus brief arguing against nonseverability. reason.com/2020/05/14/the… 2/
I'm not making any prediction about how the Court will rule in the ACA case, and, not having studied the case, I'm not denying possibility of strong arguments for nonseverability. Simply saying that Dem claim that ACB is sure vote for nonseverability has no basis. 3/
Read 4 tweets

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