The progressive knee-jerk rejection of originalism over the past 40 years & in a fever pitch in 2020 is one of the sloppiest own-goals I’ve seen in law.
The left doesn’t have to adopt it. But to suggest it’s in bad faith & ignorant is, among many things, unfair & unwise.
The left doesn’t have to adopt it. But to suggest it’s in bad faith & ignorant is, among many things, unfair & unwise.
Hear me out right here on why the left should adopt, appropriate, and fix originalism.
Better yet, hear Amy Coney Barrett herself show you how to find an originalist right to privacy in the Bill of Rights! She doesn’t even know it, but she’s right:
Better yet, hear Amy Coney Barrett herself show you how to find an originalist right to privacy in the Bill of Rights! She doesn’t even know it, but she’s right:
https://twitter.com/earlymodjustice/status/1317115124407218180
3/ As a progressive small-d democrat, I think the best way to read law is how the public understood what they ratified (&how the people’s legislators understood what they enacted & its broader purposes), more than how judges later interpreted it. Judges have usually been worse...
4/ The simple idea is that we should read texts in context, and read them humbly.
It is also the idea that the rule of law requires judges to be limited by public understandings, so they aren’t pushing their own agenda...
It is also the idea that the rule of law requires judges to be limited by public understandings, so they aren’t pushing their own agenda...
5/ This is what conservative originalists have most fundamentally (so to speak) gotten wrong:
The humility part and the judges’ ideological agenda part. They too often misread a contested history to manufacture a clear meaning for their agenda, against modern democracy...
The humility part and the judges’ ideological agenda part. They too often misread a contested history to manufacture a clear meaning for their agenda, against modern democracy...
6/ The big point for fellow progressives:
Given a 6-3 conservative Court(w/ 5 arch-conservatives), appropriating rule-of-law originalism is better than the alternatives.
This is why Republicans turned to originalism during the Warren Court!
To limit “ideological” judges!
Given a 6-3 conservative Court(w/ 5 arch-conservatives), appropriating rule-of-law originalism is better than the alternatives.
This is why Republicans turned to originalism during the Warren Court!
To limit “ideological” judges!
7/ Reagan & his legal advisor Ed Meese (Reagan's Leonard Leo) embraced "original intent" to constrain liberal judges.
Initially, "originalism" was supposed to produce judicial restraint... but then it became right-wing ideological judicial activism.
Initially, "originalism" was supposed to produce judicial restraint... but then it became right-wing ideological judicial activism.
8/ No theory is perfect. Any theory can be abused by ideological judges.
For example, progressives are skeptical about textualism b/c it has been abused by some conservatives.
But Gorsuch showed a good-faith commitment to textualism in Bostock for LGBTQ rights in June!
For example, progressives are skeptical about textualism b/c it has been abused by some conservatives.
But Gorsuch showed a good-faith commitment to textualism in Bostock for LGBTQ rights in June!
9/ I'm not saying all conservative originalist Justices will be open-minded all the time.
But sometimes, progressives will be able to persuade one or two of them with solid historical evidence to be more moderate, and every once in a while, score a huge Bostock-like surprise win.
But sometimes, progressives will be able to persuade one or two of them with solid historical evidence to be more moderate, and every once in a while, score a huge Bostock-like surprise win.
10/ Final point: The only way Dems can find enough votes to expand the SCOTUS is to guarantee moderate Dem Senators that new judges will adhere to judicial restraint.
A few progressive/moderate originalists are the way to pass court expansion legislation w/ less backlash.
A few progressive/moderate originalists are the way to pass court expansion legislation w/ less backlash.
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