Stuart Taylor, Jr.: Supreme Immodesty: Why the Justices Play Politics
[The writer is a contributing editor to Newsweek and National Journal and a nonresident fellow at the Brookings Institution. He is also co-author of "Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case."]
...Conservative (and some liberal) "originalists" are correct in saying that justices who seek to override the text and original meaning by invoking the "living Constitution" have nothing to guide them but their own policy preferences -- and precedents, which can be overruled.
But originalists cannot avoid subjective judicial policymaking, either, for at least four reasons.
First, there has never been a consensus on the original meaning of expansive constitutional phrases such as "due process of law" and "equal protection of the laws," or on how to handle the tensions among various other provisions. The Framers themselves often differed on how to apply the Constitution to specific cases.
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Second, any consensus that may have once existed about the meaning of the most important provisions has been erased by time and by the revolutionary changes in the way Americans live....
Read entire article at WaPo
...Conservative (and some liberal) "originalists" are correct in saying that justices who seek to override the text and original meaning by invoking the "living Constitution" have nothing to guide them but their own policy preferences -- and precedents, which can be overruled.
But originalists cannot avoid subjective judicial policymaking, either, for at least four reasons.
First, there has never been a consensus on the original meaning of expansive constitutional phrases such as "due process of law" and "equal protection of the laws," or on how to handle the tensions among various other provisions. The Framers themselves often differed on how to apply the Constitution to specific cases.
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Second, any consensus that may have once existed about the meaning of the most important provisions has been erased by time and by the revolutionary changes in the way Americans live....