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The problem with originalism is not that its jurisprudential foundations are shallow. Outside of the USA (indeed outside US constitutional interpretation) it is orthodoxy on how you interpret legislative words.
/1 https://twitter.com/scottjshapiro/status/1320912946936107009
/1 https://twitter.com/scottjshapiro/status/1320912946936107009
That doesn't mean (as is so often said) that we ask what the founding fathers (or whoever) thought in their heads. It means we ask what the public meaning of the words was at time uttered, just as with any other act of communication.
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The problem arises from the American context.
Legislators in the mid-nineteenth century (let alone before) did not share the values of today. So, giving effect to what they enacted will often give rise to illiberal results.
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Legislators in the mid-nineteenth century (let alone before) did not share the values of today. So, giving effect to what they enacted will often give rise to illiberal results.
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In a functioning democracy (eg Europe west of Hungary) that isn't a problem as old outdated laws are updated, and most of their constitutional order is more recent (there having been a couple of major world wars).
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The UK is relatively unusual in not having a founding constitutional document, but that has the advantage of meaning that we are not the prisoners of the past.
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The US constitution by contrast is very old, and very difficult to change.
So, adopting the ordinary approach of lawyers to its meaning gives illiberal results.
(eg Loving v Virginia is wrong).
/6 https://spinninghugo.wordpress.com/2015/06/28/how-to-be-a-judge/
So, adopting the ordinary approach of lawyers to its meaning gives illiberal results.
(eg Loving v Virginia is wrong).
/6 https://spinninghugo.wordpress.com/2015/06/28/how-to-be-a-judge/
Two criticisms of *originalists* can be made.
First, which is not a criticism of originalism itself, is that its proponents do not practice what they preach, but just follow a conservative agenda.
Citizens United v FEC, Shelby County v Holder and Burwell v Hobby Lobby.
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First, which is not a criticism of originalism itself, is that its proponents do not practice what they preach, but just follow a conservative agenda.
Citizens United v FEC, Shelby County v Holder and Burwell v Hobby Lobby.
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Second that the meaning of words runs out and does not always dictate the result within the penumbra of uncertainty all words have (Hart's "vehicles in the park").
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In the latter case, judges have to choose between one of a number of equally possible meanings. This is a legislative act. Their decision then forms a precedent for future decisions.
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Listening to Barrett however, she sounds like a romantic. I think she thinks that the judges never do the latter, that the original meaning always gives you an anwer.
Which means.
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Which means.
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Because SCOTUS is not bound by its own previous decisions, they can always be overturned, and her view is that erlier cses inconsistent with her interpretation of the original meaning of the words can be overturned.
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For her SCOTUS decisions only had "supre precedent" force because litigants don't challenge them (eg Brown v BofE) not because deserve deference from SCOTUS, nor that she would not overturn them if they were challenged and she thought them inconsistent with original meaning.
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