Originalism is a high-sounding doctrine applied to the interpretation of legal texts. In the hands of right-wing Supreme Court justices, it is a slippery concept serving to mask a reactionary agenda.
Coincidentally, I was recently ruminating on the outrage of originalism as practiced by the Roberts Court. To take one salient example, the framers could not possibly have anticipated the types of automatic weapons or their use to commit mass violence. And, of course, to imagine that 18th century white men, no matter how brilliant, should be trusted for their opinions on women and people of color is ridiculous.
I would suspect that the legal hermeneutics of not a few members of the Supemes is informed by their biblical hermeneutic; their literal interpretation of biblical text guiding judicial opinion.
Cherry-picking indeed. From a tree Washington is said to have chopped down. True originalism would mandate that citizens bearing "arms" would carry only muskets. And as part of a militia. Not just any militia, but a well-regulated one. One protecting out country from foreign invasion.
I did legal work for the IRS for many years, lots of private rulings and some legally binding, formal guidance. Legal counsel would submit opinions to ‘educate’ us in favor of their client’s position. It was clear that competent lawyers could justify any end using whatever means were at their disposal.
I won’t go into the tricks of the trade, suffice it to say that I remained open minded by doing the research and thinking about the logic before reaching a conclusion.
After reading several of the SC majority opinions this term, the opposite is true. End justifies the means. We are back to Plessy v. Ferguson where the SC majority concluded that slavery did not violate the equal protection clause of the 14th Amendment.
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Here is just one example of how the Plessy Court twisted logic to reach an untenable conclusion. “The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.”
I suspect that the SC originalist interpreters would reach their ultra-conservative conclusions irrespective of what their subscribed jurisprudence philosophy.
Coincidentally, I was recently ruminating on the outrage of originalism as practiced by the Roberts Court. To take one salient example, the framers could not possibly have anticipated the types of automatic weapons or their use to commit mass violence. And, of course, to imagine that 18th century white men, no matter how brilliant, should be trusted for their opinions on women and people of color is ridiculous.
I would suspect that the legal hermeneutics of not a few members of the Supemes is informed by their biblical hermeneutic; their literal interpretation of biblical text guiding judicial opinion.
Cherry-picking indeed. From a tree Washington is said to have chopped down. True originalism would mandate that citizens bearing "arms" would carry only muskets. And as part of a militia. Not just any militia, but a well-regulated one. One protecting out country from foreign invasion.
Fine analysis of originalism.
So enjoy reading your essays.
I did legal work for the IRS for many years, lots of private rulings and some legally binding, formal guidance. Legal counsel would submit opinions to ‘educate’ us in favor of their client’s position. It was clear that competent lawyers could justify any end using whatever means were at their disposal.
I won’t go into the tricks of the trade, suffice it to say that I remained open minded by doing the research and thinking about the logic before reaching a conclusion.
After reading several of the SC majority opinions this term, the opposite is true. End justifies the means. We are back to Plessy v. Ferguson where the SC majority concluded that slavery did not violate the equal protection clause of the 14th Amendment.
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Here is just one example of how the Plessy Court twisted logic to reach an untenable conclusion. “The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.”
I suspect that the SC originalist interpreters would reach their ultra-conservative conclusions irrespective of what their subscribed jurisprudence philosophy.