By Eric Segall
Last week on the Law & Liberty blog, Professor John McGinnis, a well-known academic originalist and libertarian, reviewed Professor Adrian Vermeule's new book "Common Good Constitutionalism." Vermeule's anti-originalist writings have been upsetting originalists for some time now and for good reason. His critiques of originalism are as persuasive and compelling as his program for what he deems to be the "common good" is disturbing. But we can learn a lot about the fallacies of originalism through a serious examination of McGinnis's futile attempts to critique Vermeule's book.
McGinnis begins by saying Vermeule's attacks on originalism are unlikely to succeed because "the originalist project it challenges has too much momentum to be derailed. The Supreme Court has a majority of originalist justices, and a considerable majority of the small band of legal academic conservatives are originalists."
The Supreme Court does have a majority of Justices who self-identify as originalists but that is simply not the same as saying they decide cases like originalists. The examples of anti-originalist behavior on the Court could fill a book but here are a few key ones:
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