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April 02, 2017

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Captain Hurska Carswell, Continuance King

Originalism is neither Liberal or Conservative, Republican nor Democrat. It is a response to the notions of a "living, breathing" document molding itself to contemporary standards. Let's look at that. Suppose some of Trump's White Nationalist supporters want to get rid of any person who does not look like them. Their notion of a contemporary standard. Suppose further, they obtain additional political currency and power. Under a "living breathing" standard, our Constitution is turned into a hate screed. Originalism protects against that.

terry malloy

Agree with Cpt.

'Living and breathing' is only a good thing to the extent the arc of history bends toward justice in a Lockian sense (protecting the minority against the majority or protecting the weak from the powerful).

This is not always the case. (See, e.g., muslim ban, Jim Crow, Japanese internment during WWII)

Al Brophy

Terry Malloy,

Would African Americans have fared better under Jim Crow with originalism? I don't know as the answer is "absolutely yes." Alexander Bickel made his name with an article arguing that Brown was not justified on (what I think we'd now call) originalism.

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