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.
Sorry, I was being too flippant.
I've come to believe that originalism is inherently disingenuous and discussing it as if there's a way to apply it that isn't disingenuous is pretty much the only thing that gives it the veneer of legitimacy.
I'm not a lawyer, so maybe there's something I'm missing, but it's weird seeing lawyers who refute originalist opinions do so in a way that still gives some credence to the idea that there's anything to it when they seem to understand there isn't.
IDK, personally felt like the entire point of the thread was that they're gigantic liars who don't bother to read and have fucked up the country multiple times.
There are liberal originalists such as Akhil Amar and Jack Balkin (though tellingly they are not *only* originalists) and some conservatives like Will Baude who I think try to do it in good faith. But in practice in the conservative judiciary it is what you say here.
I mean, this is probably true (and I know Will from way back and accept that he's probably trying to be consistent.) But the fact that there are true believers does not make the process less horseshit.
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.
