This, and your reminder: if you ask originalists about Dred Scott, they will tsk loudly and say "Dred Scott shows the dangers of anything but an originalist approach! Dred Scott should make us all aware of the horrors of substantive due process!"
I once wrote a fact check of a Morgan Spurlock book. He included what he said was a direct quote from the FDA that aspartame causes cancer. I checked the footnote. An FDA newsletter did publish that claim — but *only to specifically refute it*.
That’s basically how Barrett quotes Madison here.
And you say, huh, how about that EXTREMELY LENGTHY section in the middle of Dred Scott--you know, the part that starts off with this super-originalist sounding opinion, that then goes through and analyzes whether Black people could be citizens using what sounds like an originalist interpretation?
And, if they've read the opinion--just to be clear, many of them haven't--they'll shake their heads and say "oh no, you see, Dred Scott is not a *real* originalist opinion. It ignored mounds of historical evidence, you see, in favor of the Justices personal policy preference."
So let me ask you this: we have Barrett misquoting founders; we have Alito misquoting Sir Matthew Hale. We have the entire debacle that Bruen created, which the court kind of made "aw shucks you guys misunderstood" noises in Rahimi.
It's also possible that originalism is utter horseshit that wouldn't offer a coherent ideology even if it was applied consistently, which it doesn't seem to be.
But some theories are inherently without intellectual integrity. Originalism may not be the only one, but it is one.
Also think the real distinction is between bad faith and good faith actors, not integrity or consistency. Your formulation inappropriately "both sides" this.
