Editor’s Note: This week, we are working with our friends at Slate to talk about originalism: what it is, why it’s terrible and stupid, and what can be done about it before Republican judges use it to bury democracy under a mountain of half-baked Wikipedia citations. Here is Jay Willis on the most pernicious lie of originalism: that the only people capable of interpreting the Constitution are credentialed experts who, in a wild coincidence, happen to be champions of the conservative legal movement.
As a branding exercise, originalism has been a wild success. The concept, once fodder for obscure law review articles no one read, went mainstream in the 1980s, after the Supreme Court dealt the conservative legal movement a series of high-profile losses on issues like affirmative action and abortion rights. In 1985 Edwin Meese III, then the attorney general under President Ronald Reagan, outlined his grand vision of a “jurisprudence of original intention” in a speech before the American Bar Association. “Those who framed the Constitution chose their words carefully,” he said. “The language they chose meant something. It is incumbent upon the court to determine what that meaning was.”
No comments:
Post a Comment