Club Soda and Salt

No more stains

Originalism can eat it

Posted by clubsodaandsalt on June 29, 2003

This has been a pretty good week for liberals, and those are becoming few and far in between these days. Anyway, we got to keep affirmative action, and sodomy laws are no more, so the court is on its way to redeeming itself for the Bush v. Gore fiasco. Maybe. Meanwhile, Slate has a delightful exchange about the court this week which eveyrone should read. Dahlia Lithwick makes this excellent crtitique of the “originalism” practiced by conservtive judges like Scalia:


What does seem disingenuous to me is that Scalia asserts that the role of the court in these “culture wars” is to “assur[e], as neutral observer, that the democratic rules of engagement are observed.” While I’m not even sure what that means, it does seem to me that Scalia has more than once “taken sides in the culture war”every time he votes to support school prayer, or vouchers, or keeping gay scoutmasters out of the Boy Scouts. Sure, he calls it “Originalism” and claims to be neutrally supporting neutral principles espoused by the framers of the Constitution. But the neutral principles espoused by the framers were rooted in the same Judeo-Christian values he shares. You can’t say you aren’t taking sides in the culture wars simply because you’re taking the side of tradition.

Damn right. I’ve been saying that strict constructionists are full of shit for years, but Dahlia says it much better.

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