Justin Driver and Eric A. Posner on Originalism
What is “originalism?” Why Trump wants an originalist on the Supreme Court
In the strictest sense, originalists see the constitution as a dead, static document, as opposed to the liberal notion of living constitutionalism. But phrasing it that way—as “dead”—might make originalism a lot less appealing to Americans, argues University of Chicago law professor Justin Driver.
If the constitution is “alive,” it offers principles to inform an ever-changing society. Textualists contend that the constitution cannot to be understood anew with each generation and its shifting mores, however, that it represents a set of fundamental rules. They put themselves in the shoes of a framer in 1779, at the time the document was ratified, and try to imagine what a Founding Father like Thomas Jefferson would have to say about a sex offender’s use of Facebook, for example (apparently, he would have considered social media the new “public square” based on a unanimous 2017 decision in Packingham v. North Carolina, an opinion written by Kennedy).
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Deceased justice Antonin Scalia might be called the original originalist and is credited with making this historical approach to legal interpretation a popular subject of discussion among conservative politicians and liberal lawyers alike. Still, even Scalia was wishy-washy. “Scalia’s version of originalism led him to write 135 liberal opinions,” writes attorney and author of the 2017 book The Unexpected Scalia, David Dorsen, in the Washington Post (paywall). He notes that Scalia’s successor, Neil Gorsuch, isn’t a reliable originalist, either, and sometimes seems more driven by moral arguments than by the law.
That may be because—as University of Chicago law professor Eric Posner believes, originalism is just a political “code word”—and means little to anyone. “Legislators don’t care about originalism. Regulators don’t care about originalism. Not even the lower courts care about originalism… Presidents are concerned above all with an appointee who will not interfere with their political agenda,” he contends.
Posner points out that “a sincere originalist is not as politically dependable as someone with strong conservative political values.” A textualist is devoted to the text, the ideas espoused in the constitution above all else. A political party’s perspectives are secondary to a true originalist perspective.
Read more at Quartz