Bench Memos

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Another Ignorant Critic of Originalism


It’s remarkable how many arrogantly dismissive critics of originalism have no idea what it is.  Here’s an excerpt from an op-ed by historian Joseph J. Ellis in today’s Washington Post:


It’s tempting to believe that the political wisdom of our Founding Fathers can travel across the centuries in a time capsule, land among us intact, then release its insights into our atmosphere — and as we breathed in that enriched air, our perspective on Iraq, global warming, immigration and the other hot-button issues of the day would be informed by what we might call “founders’ genius.” (Come to think of it, at least two Supreme Court justices who embrace the literal version of “original intent” believe that this is possible.)


For starters, the two justices that Ellis is referring to—Justices Scalia and Thomas—embrace the original-meaning species of originalism, not the original-intent species.  (See third paragraph in first link above for an explanation of the distinction.)  More importantly, originalists believe only that the meaning of constitutional provisions is to be construed according to originalist principles, not that policy decisions within constitutional bounds should be made by asking what the Framers would have done.  In other words, originalists recognize that the Framers created a constitutional republic in which citizens over time can, within broad bounds, revise policies to changing circumstances. 


Why is it that so many otherwise intelligent academics can’t understand this elementary point?  Might it be that they have no answer to it?


Equally curiously, after mistakenly dismissing originalism and asserting generally that the “gap between the founders’ time and ours is non-negotiable,” Ellis relies on an originalist argument (based on his reading of “the debates … in the Constitutional Convention and the states’ ratifying conventions” and what the “founders intended”) in setting forth his thoughts on the proper scope of executive power.

Tags: Whelan


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