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Originalist Sins

Conservative Justices like Antonin Scalia and Clarence Thomas get a great deal of criticism (from the left) and praise (from the right) for being “originalists” and committing to follow the “original meaning” of the Constitution’s text.  Constitutional Accountability Center comes at this debate from a different direction.  We think Justices Scalia and Thomas are right in taking the text and history of the Constitution very seriously — that’s what constitutional accountability is all about. Yet, too often, these Justices manipulate text, speculate wildly about the intentions of the framers, and end up far from the letter and spirit of the Constitution.   CAC’s series “Originalist Sins” highlights examples (old and new) of when judges purporting to be “originalists” twist the text and history of the Constitution or ignore the method they profess to follow.

Why Can’t Ed Whelan Take Yes for an Answer?

December 2, 2011

For decades, conservatives like Ed Whelan, the President of the Ethics and Public Policy Center and a prolific blogger at National Review’s Bench Memos, have criticized progressive judicial nominees for not endorsing originalism or for espousing a “living Constitution.”  So you would think that Whelan would be overjoyed that many of President Obama’s nominees, including D.C. Circuit nominee Caitlin Halligan – scheduled for a cloture vote next Tuesday -- have emphasized the priority they put on the Constitution’s text and history.

Justice Scalia, the “Living Constitution,” And the Promise of New Textualism

October 7, 2011

At a remarkable Senate Judiciary Committee hearing this week featuring two Supreme Court Justices -- Antonin Scalia and Stephen Breyer -- Justice Scalia drew laughter with his predictable line that he wished the “living Constitution would die.” The funny thing is that, to a large degree, it already has.

An Originalist Defense of Health Care Reform

March 8, 2011

During testimony recently before the Senate Judiciary Committee on the constitutionality of the health care reform law, Georgetown Law Professor and opponent of the Affordable Care Act Randy Barnett asserted that “No one claims that the individual mandate is justified by the original meaning of either the Commerce Clause or Necessary and Proper Clause.”  Well, Professor Barnett cannot make that assertion any longer.

Justices Scalia, Alito Square Off on Originalism

November 4, 2010

Supreme Court Justice Antonin Scalia is the nation’s most important conservative originalist, a long time champion of the view that the original intent of the framers binds the Justices, and it often falls to progressives to point out the pitfalls of a version of originalism that seeks to divine what James Madison would have done if faced with today’s unique technical challenges and constitutional questions.   So, it’s a pleasure to see Justice Samuel Alito take Justice Scalia to task for his faulty originalism.

Justice Scalia’s Originalist Sins

September 22, 2010

by David H. Gans, Director of the Human Rights, Civil Rights & Citizenship Program, Constitutional Accountability Center

Rand Paul, the Tea Party, and Our Constitution

May 21, 2010

The Tea Party likes to portray itself as fighting for the Constitution, but more and more evidence makes it clear that the Tea Party only cares about the parts of our original Constitution that limited the powers of the federal government.  In their rush to exalt states’ rights, Tea-Partiers consistently ignore the rest of our Nation’s foundational document, particularly the amendments to the Constitution that made equality and protection of basic civil rights fundamental constitutional values, secured the right to vote and made our system of government more democratic, and gave the federal

Don't Trash the Constitution, Justice Scalia

March 2, 2010

This front-page story in yesterday's Washington Post featured a quotation from Justice Antonin Scalia, taken from a 2006 Yale Law School presentation, in which the Justice calls the 14th Amendment's Privileges or Immunities Clause "flotsam." Flotsam is defined by Webster's Dictionary as "floating debris": trash, in other words. Talk about trashing the Constitution.