Monday, April 24, 2017

What is at Stake in the Hypocrisy of Originalism?

4/24/2017—The hypocrisy of originalism, actually originalists, is easy to see—wide areas of constitutional jurisprudence supported by originalists consist of deep normative principles that have nothing to do with the original public meaning of the constitutional text or the expectations of the framers. This is so in affirmative action, free speech, procedural due process and now in the pending Trinity Lutheran Church case concerning equal spending for churches.

The hypocrisy is the pretense that conservatives follow the principles of originalism or textualism when actually they only do so when those principles lead to results they favor for other reasons—they are actually practicing the living constitution.

I should add both that I mostly favor these normative commitments myself and that the hypocrisy of the left on constitutional jurisprudence is even more pronounced—or maybe it is just that there is no jurisprudence of the left and so liberals just jump around incoherently in the constitutional interpretation.

But what is at stake in originalist hypocrisy is very great. Conservatives have been consistently criticizing normative judgment and selling legal positivism even while they have been practicing the former and rejecting the latter. This occurred most recently at the Gorsuch hearings. I even think conservatives do not realize quite what they have been doing. And now they are succeeding in convincing the public and many law professors that originalism is the only way to interpret the Constitution. Thus, we are all originalists now.

I am accusing originalism of blasphemy—of sinning against the good. By insisting that judges should not be concerned with morality in interpreting the Constitution, conservatives have helped lead the culture into the abyss of nihilism. Now even ordinary people have begun to doubt that there is such a thing as actual right and wrong.

Justice Scalia is exhibit A in this indictment, but he is not the only one.

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