Tuesday, October 8, 2013

Originalism is Not That Complicated

This is a post about Justice Scalia, but Daniel McCarthy uses the opportunity to take a swipe at movement conservatism (what else is new) and a rather obtuse swipe at originalism. For this new iteration of Daniel McCarthy talk of nuance, thoughtfulness etc. is a synonym for moderation. But an honest examination of originalism leads to more, not less, radical outcomes. Below is my post which has not yet been approved. I can’t see why it would be censored, unless they are balking at my reference to natural born citizen, but that is a perfectly legit example.
There are issues with originalism. Do you go with what what was actually written or what was likely intended? And whose intent? The Framers only? The state ratifying conventions only? Popular understanding at the time? Some combination? But that said, most issues are not murky from an originalist standpoint, particularly the doctrine of enumerated powers. So if we have all these originalist jurists then why aren’t they striking down programs on the basis of enumerated powers? Saying “you can’t do that” is not activism. Expanding powers and rights is activism. 
One issue where original intent really is murky is just what they intended by requiring that the President be a natural born citizen. Perhaps they could look into that. But whether the Framers/state conventions intended to allow the Feds to run a healthcare program is not murky. They didn’t. 
Modern conservative judges are only originalists to the extent that it doesn’t strike at longstanding programs. They are originalists around the edges.