Legal Conservatives Now Want to Move Beyond Originalism (user search)
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  Legal Conservatives Now Want to Move Beyond Originalism (search mode)
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Author Topic: Legal Conservatives Now Want to Move Beyond Originalism  (Read 7560 times)
Associate Justice PiT
PiT (The Physicist)
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« on: April 26, 2020, 09:31:11 PM »

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.

     While the 9th Amendment is necessary as a catch-all to help protect against unforeseen things that are logically natural rights simply being dismissed on account of non-enumeration, the inherent risk is that people will read into it whatever they want to find in it. Given that the trend in recent decades has been towards a reformulation of originalism that many will see (and perhaps not incorrectly) as a weakening of its previous stance, I can see the desire for a reaction against originalism from the right.
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