Andy: If good originalists are supposed to ignore 100 years of bad precedent, and incorporation amounts to a series of bad precedents, then shouldn’t good originalists be trying to undo incorporation too? You argue that it is “too late in the day to argue” against incorporation either in general or even in the specific case of the Takings Clause. If so, why is it not too late in the day for Thomas to argue against these other precedents? What’s the distinction between which bad precedents have to be accepted and which rejected? Finally, what’s so puzzling about Scalia’s disagreement with Thomas? Isn’t Scalia generally more inclined than Thomas to follow precedents even when he thinks those precedents misread the Constitution?
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About the Author
Ramesh Ponnuru is the editor of National Review, a columnist for the Washington Post, and a fellow at the American Enterprise Institute.
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