Eric Alterman thinks the New York Times is whitewashing Ed Meese’s record. He succeeds in establishing that the Times did not, in an article seeking to demonstrate that Meese has been influential–which does not mean that the Times was celebrating his influence–include every negative thing that could be said about Meese.

Here’s Alterman’s most foolish comment: “A second gimme offered to the far right is the story’s assumption that the legal philosophy of ‘originalism’ deserves to be taken seriously, as anything other than yet one more fundamentalist gimmick–à la ‘intelligent design’–designed to undermine what the rest of us consider to be reality. Owing to its commitment to the ideal of ‘objectivity,’ the Times treats the question as mere partisan debate, quoting liberals Laurence Tribe and Justice Brennan in opposition to Meese et al. In doing so, it reifies nonsense and offers its imprimatur to politically motivated pseudo-scholarship. As the Constitutional Convention’s leading expert, Stanford’s Jack Rakove, explains in his Pulitzer Prize-winning history, Original Meanings, ‘Even the conservative framers themselves. . . having learned so much from a mere decade of self-government, and having celebrated their own ability to act from “reflection and choice,”‘ would find ‘incredible…the idea that later generations could not improve upon their discoveries.’”

Rakove is reputed to be a smart guy, so I will not assume that he believes that his comment is some kind of criticism of (or even a pertinent comment about) orginalism, which is how Alterman takes it. As an attempted criticism, it’s pathetic. The notion that the Constitution should be read in light of the understanding of the ratifying public says nothing about whether later generations can make improvements on the Founders. Where the original understanding of the Constitution leaves policy choices open, originalism does not bar modern governments from making changes. Where it does not leave those choices open, originalism merely closes off one possible path of change–judicial reinterpretation of the provisions at issue. Constitutional amendment is still left available as a way to improve on or adapt the Founders’ work.

But it’s even weaker as media criticism. It is simply true that many liberal legal theorists take originalism seriously–more seriously than scientists tend to take intelligent design. It is true, as well, that some liberals take it sufficiently seriously that they have developed liberal versions of originalism, trying to claim it as their own. It is true, finally, that jurists of many different political persuasions end up doing originalism when it leads them to the conclusions they want or find acceptable–in that sense, it’s almost a default method of constitutional interpretation. For the Times to write, on every mention of originalism, that “many scholars believe that it is a philosophy of judging that rests on pseudo-scholarship” would be for it to deepen its liberal bias–which is what I’ve always figured the Alterman project of media criticism is about.