Legal Conservatives Now Want to Move Beyond Originalism

[Torie]

"In this time of global pandemic, the need for such an approach is all the greater, as it has become clear that a just governing order must have ample power to cope with large-scale crises of public health and well-being—reading “health” in many senses, not only literal and physical but also metaphorical and social."

This bit is already settled jurisprudence. In times of an emergency, the executive has more power. Lincoln by executive fiat banned slavery in the states that seceded by executive fiat. Even FRD's decision to send American citizens guilty of no crime who happened to be of Japanese ancestry was upheld. The law is not a suicide pact.

What the guy misses, is that the more vague broad principles are used by SCOTUS to strike down or uphold laws and actions, the more SCOTUS is moving to itself both executive and legislative power. Be careful what you wish for.

[Torie]

I don't know that this sort of thinking has really found it's way into the mainstream of legal conservative thought. That being said, many figures on the right have become more critical of Originalism as of late. George Will recently criticized it and advocated for the view that certain "natural rights" are inherently protected by the Constitution without being listed, and in a similar vein many libertarian conservatives have embraced the 9th Amendment as a magical rights making machine that protects everything they like, but not stuff they don't like view. I think this is sort of the social conservative response. Still, I don't know that we will see anyone with views this extreme in high judicial office any time soon. I hope originalism remains dominant among conservatives, but I do think the consensus is starting to break down, and there has been evidence of this for some time.

The problem with originalism as the strict constructionist subspecies of choice is that you really can't establish any one "original intent" of any legislative text since dozens or hundreds of people each had their own reasons for voting on it. How the meaning of the text would have been understood by the original audience after it was passed into law makes more sense as a question to ask, but I tend to look at that as a subspecies of textualism rather than of originalism.

Yes, you try to divine what otherwise ambiguous text means by looking for extrinsic evidence of intent. With statutes, these days one looks to legislative history. Congress has set piece colloquies regarding meaning that go into the legislative record. And given the ambiguity of words, we use defined words a lot which then in essence become terms of art.

I find most of these discussions of originalism verus textualism versus a living Constitution versus an in loco parentis Constitution that this common good Conservatism guy is hawking typically sterile and more obfuscating than illuminating in general. That said, I am prudential enough to very much hew to the notion that the Constitution should not be so interpreted as to become a suicide pact.