Originalist Sin

The only thing that will save SCOTUS and will be very good for the country is a bunch of strict originalists* on the bench. They should refuse to legislate, should stop looking for penumbras of something utterly unintended in the Constitution, and force the legislature to legislate.

The reason why there are fewer originalists than there should be is that this is an approach that makes the courts less important and less powerful. And who wants to have less power?

All I want to know about Barrett is how much of an originalist she is. Everything else is fluff and distraction.

Originalists are hounded and vilified for pretend infractions because their real, unmentioned sin is that they refuse to make themselves useful to those who want a shortcut that makes democracy unnecessary.

* For non-US readers, an originalist is a jurist who interprets the Constitution as it was originally written and intended.

12 thoughts on “Originalist Sin”

  1. Faced with two plausible readings of a law, fact, or precedent, Barrett always seems to choose the harsher, stingier interpretation. Can job applicants sue employers whose policies have a disproportionately deleterious impact on older people? Barrett said no. Should courts halt the deportation of an immigrant who faced torture at home? Barrett said no. Should they protect refugees denied asylum on the basis of xenophobic prejudice? Barrett said no. Should they shield prisoners from unjustified violence by correctional officers? Barrett said no. Should minors be allowed to terminate a pregnancy without telling their parents if a judge has found that they’re mature enough to make the decision? Barrett said no. Should women be permitted to obtain an abortion upon discovering a severe fetal abnormality? Barrett said no.



    1. Slate? Your source on SCOTUS appointments is Slate?

      And this is the intellectual caliber of people who think it’s ok for them to inflict themselves upon my notice.


  2. “The great sin of the originalists is not to harbor a political agenda but to claim they do not, and to base that claim on a level of historical understanding they demonstrably do not possess.”

    ~Joseph Ellis


      1. I could say a lot but Joseph Ellis, historian scholar has spent his life in study of American Revolution era & has written on the scam of originalism says it much better — how basically it just a pretext for justifying preconceived conclusions. In American Dialogue, Ellis illustrates via District of Columbia v. Heller (2008), John Paul Stephens actually embodied the originalist perspective & captured what Madison & fellow founders were doing when they authored 2nd amendment, but Scalia performed acrobatics under guise of originalism, that was historically untenable.


        1. You do realize that people stop reading your comment when they get to the word “scam”?

          It’s interesting to me whether people are aware of how they undermine their own message through their choice of vocabulary and rhetorical devices.


              1. “is an idiot”

                Let’s not be too judgemental here – you are, of course, forgetting to consider that there are plain vanilla white supremacist theocrats and then there are your particularly nasty, odious and repulsive, pro torture white supremacist theocrats. A vast literature of peer-reviewed and journal-published research by warring schools of “scholars, historians, & constitutional scholars” have been devoted to teasing out the differences.

                (Of course, in the end I suppose that being a well-read idiot is not actually something to aspire to…)


  3. Marbury v. Madison wasn’t ‘intended’ in the Constitution. Yes, we can see why true inerrant originalism doesn’t exist.


  4. I agree with you. A great deal of litigation that challenge the constitutionality of these draconian lockdowns is coming our way. This is the time when the country needs a good conservative judge who believes in government overreach on the SC.

    Liked by 1 person

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