@tzimmer_history

I'm glad someone has written about this. I haven't read the book, but I'll add to my list of possibles.

About originalism, my own feeling is this: In the most literal interpretation, originalism, at least as practiced, would be perfected if the amendment process were nullified and courts were never allowed to set precedent. That's what originalism seems to be saying. And yet that can't be.

The founders knew they were not doing it all right. They gave us a living system, one capable of responding to changing needs, so that society didn't outgrow itself. This was a great insight and perhaps the most important of the original thoughts, though not part of originalism.

A literal take on originalism would unroll women's right to a vote or the right of African Americans to be 100% people at all. That's preposterous in any sane modern understanding and to assert that this is the proper interpretation of law now, especially after having fought the Civil War over this, is improper.

More generally, originalism fights the ability to patch holes in the system. As a computer person, I see it precisely the same as an insistence that the only true version of a piece of software is version 1.0, the originally released code. To me, the amendment process of the Constitution is the service agreement, the ability to stay up to date with fighting later-discovered vulnerabilities. No one would want to use a piece of software that is not protected in this way. Our government, in my mind, is no different.

The originalists are basically just hackers bent on breaking in and controlling the system, and their tool is to convince people that maintenance is bad and to use Jedi mind tricks to convince people to allow them to unroll security fixes. Again, just preposterous.

This relates as well to Stare Decisis. I'm busy writing a blog post on that today, so I'll try to link it here if I finish it, but the importance of stare decisis and the utter violation of civil society that SCOTUS is presently engaged in by tearing it to shreds is something I think the populace does not generally understand.

In brief, and I'll try to write this better in the blog, stare decisis is not just an old decision that SCOTUS is entitled to label as "wrongly decided". It is part of a societal conversation that says "this will be the default unless Congress acts". But over time, through inaction, it becomes law because the inaction says loudly "no action was needed, the public is doing fine". This is very critical to society because we do not need a bunch of laws that just say "Yeah, what SCOTUS said." The way we say that is to not change the decision.

So when SCOTUS overrides a long-standing thing, they are not just saying "this was decided wrong" but also "the fact that society has seen the decision and allowed it to stand is of no importance to us".

That is as undemocratic as overturning actual legislation. It is the ultimate in adverse and inappropriate judicial action. They see it as "this was and is in our realm" but the proper way to see it is as a conversational offering to say "tell us we're wrong", and they don't interpret the silence as having involved the other branches. It is not now in their realm.

So I agree originalism is a trap, though I'd be fascinated, if I can find the time, to read someone else's analysis of it, which probably hits other things I haven't thought of.

By the way, I am not a lawyer, but I don't think only lawyers need opine. This is about what We The People want our world to be, and every one of us is equally entitled to opine on that, notwithstanding what the Supreme Court says. Indeed, the Supreme Court and all government derives legitimacy from the consent of the governed, but right now they are actively engaged in making sure the public has no ability to give consent. In effect, they are staging a coup-by-process. So while legal scholars may opine differently than I have, I stand by my right to have an equal position as just one voice of many in our democratic society. The strength of my words should be in the strength of my argument, not the strength of my credential.