Constitutional originalists have been doing a victory lap after Ketanji Brown Jackson declared, in her confirmation hearing, “I believe that the Constitution is fixed in its meaning. I believe that it’s appropriate to look at the original intent, original public meaning, of the words when one is trying to assess because, again, that’s a limitation on my authority to import my own policy.” This, Georgetown Prof. Randy Barnett declared, “legitimates originalism. . . . she has affirmed that it is the norm.”
Other commentators more soberly noted that originalism now takes so many different forms that it no longer means much. It certainly does not entail the conservative political implications that the early proponents of originalism, such as Edwin Meese and Robert Bork, hoped for. Jackson was signaling to her new colleagues that she speaks the same language as they, but that doesn’t limit what she will say. You can say almost anything in original-speak.
Originalism has three central problems. It doesn’t really constrain judges. Even if it did, it would do so randomly and chaotically. But in fact, as it has been deployed in the Supreme Court, it is a fraud… Read More
Andrew Koppelman, the John Paul Stevens Professor of Law at Northwestern University, is the author of Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, forthcoming). He has a regular column at The Hill every other Sunday. Follow him on Twitter @AndrewKoppelman.