Progressives have no cogent or coherent critique of originalism as an interpretive method except to concede that they want SCOTUS justices to impose their policy preferences when they can't achieve goals through legislation and/or the heavy lifting of constitutional amendment.

That's why we're seeing all sorts of unhinged commentary about originalism qua endorsement of slavery/misogyny, corporate astroturf, etc. As in any political campaign, when a contestant starts losing on the merits, they attack, invoking every straw man and red herring possible.

That is not to say originalism is perfect. But as Justice Scalia liked to say, it doesn't have to be. "If we're being chased by a bear in the woods, I don't have to outrun the bear. I just have to outrun you." Progressives can't outrun originalism or the bear.

The notion that originalism produces only conservative outcomes is also ridiculous on its face. Look no further than District of Columbia v. Heller (the gun rights case progressives hate) and observe how the majority and dissent both used originalism to reach their conclusions.

And I would encourage any progressive to read @lessig's remembrance of his former clerkship boss (for whom ACB also clerked). "In every case . . . Scalia followed originalism, however reluctantly, whether the result was conservative or not." https://www.usatoday.com/story/opinion/2016/02/17/lawrence-lessig-scalia-set-principled-example/80448256/

We're also seeing characterizations of originalism as a quixotic quest to understand what the framers, as individuals, intended with the words they chose for the Constitution. That was true of "original intent" jurists like Robert Bork but is not how originalism works today.

Rather, contemporary originalism tries to understand what the Constitution's words meant to the people who ratified the document. "We the People"--not "We the Drafters"--gave legitimacy to the Constitution as a legal document establishing the framework for the new United States.

For more on this distinction and some of the specifics of the empirical exercise of discovering the "original public meaning" of the Constitution's text, see, e.g., @RandyEBarnett's (very accessible) "The Gravitational Force of Originalism": http://fordhamlawreview.org/wp-content/uploads/assets/pdfs/Vol_82/Barnett_November.pdf

The nonsense is reaching sadly predictable peaks. @HillaryClinton went to law school and passed the bar exam, so she should know better, but instead she's tweeting stuff like this. Originalism doesn't ignore that the Constitution has been amended. https://twitter.com/HillaryClinton/status/1316407020740722688

Originalism is a democratic method of interpretation because it respects the institution of ratification, i.e., we interpret the text of the operative provisions of the Constitution (unamended portions + amendments) according to the meaning given by people who ratified it.

We defer to their judgment because they went through a democratic process to produce the operative text. If we disagree with the judgment, well, lucky us. The Constitution spells out two specific methods for changing the text.

"But George, amending the Constitution is _hard_." I don't disagree. That's part of the price we pay for long-term stability and continuity of our government. But short-cutting the amendment process through the Court has only exacerbated divisions among us.

All the money and political organizing capital being spent on high-profile confirmation fights is a predictable result of the war for the soul of SCOTUS that the Warren Court wrought. It could be far more productive in organizing amendment conventions.

But people on both sides of the left-right political spectrum in America think amending the Constitution is kooky. It's not kooky; it's contemplated by the text of the document itself. It's hard, and I get that, but it's not kooky.

Hi, new followers, and thanks everyone for the retweets and likes! I don't blog as often as I'd like, but here's my chicken & andouille sausage gumbo recipe: https://www.georgescoville.com/2020/10/09/chicken-andouille-sausage-gumbo-recipe/

Welcome to still more new followers. If you're so inclined, check out and consider giving to one of my favorite charities, @RIServiceDogs: https://retrievingindependence.org/how-to-help/ 

Also, fair warning, when I'm not ranting about constitutional interpretation, I tweet _a lot_ about hockey.