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May 28, 2017


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one might say that you, sir, might do better to avoid the apolitical pretense that marks so much of the "scholarship" (musing would be a more apt description, perhaps) set forth above, and drop the attempt to smear a theory of interpretation by claiming that it is just a pretense concocted to avoid Brown. That, sir, is an impossibly biased view of the world, and for that reason you probably will deny that is your point.

But, your point reeks, as they say. "Originalism's intellectual history appears deeply rooted in segregation; originalism shed its segregationist past [only because] elite opinion and racial mores changed; originalism was developed over a number of years largely by conservative scholars who needed a compelling narrative to undermine Warren and Burger Court precedents ... "

You then proceed to link "orginalism" to an implicit smear of any republican (or perhaps you would say "conservative" though you can't define that term), who dares to espouse a theory of constitutional interpretation. (Indeed, you seem to label a racist any person who might agree with any such theory, whether a republican, conservative or otherwise.)

"Orginalism" (you can't really define this term either by reading your post, other than by reference to "anything a republican or "conservative" might have said") "was developed in the Reagan DOJ; the move to public meaning originalism was due to the ideological entrepreneurship of Justice Scalia and his former clerks who joined the legal academy; the "new originalism" was developed to justify the Rehnquist Court's jurisprudence and encourage further jurisprudential developments by the Roberts Court (or chastise the justices when they disappointed); that originalism and the Federalist Society, inextricably intertwined, are an alternative knowledge structure from the liberal legal academy to provide intellectual ballast and support for conservative justices."

Ahh, so "originalism" is anything that a republican says that is "not liberal" theory. And racist. Got it.

You then drift into citing talk radio, and other sort of weird references to Larry Solum, to whom it would seem to this reader you owe a deep and sincere apology.

In the latter reference, you jump the shark and go completely off into this bizarre la la land. In this bizzaro world, legal theories, you sometimes seem to concede may be perfectly valid and useful are just racist tropes motivated by insincere, illegitimate and sinister desires to hurt black people. Are you serious?

Bunk. If you dislike republicans so much, and every organization to which they belong and every justice they support, say so. Don't dress up your bias and prejudice with all that jargon and self-conscious posturing, because the poor little piggy that is your core point suffers for the thick, gaudy lipstick you have put on it.

Long ago, it was recognized that one of the most motivating desires for humans is to be important. Some equate that importance with recognition by others. Saying outrageous things about serious scholars may be the new normal way to garner attention ("Richard Garnett and Stephen Sachs, even if only by Twitter, and a blog post by Chris Green at The Originalism Blog, responded to my post about the intellectual history of originalism (here, here, and here). A grad student could not ask for more.") but this reader, for one, would prefer if you tone down your accusations of racism and your partisan attempt to smear members of the "other" party.

Deep State Special Legal Counsel

Originalism is a response to the construct of a "living breathing, Constitution." For many years, that notion was used to advance good faith, honest progressive ideas on both the right and left. However, the danger is that unprincipled people of bad faith such as racial and political nationalists will use that to invoke their notion of change ---"see, the Constitution must breath to exclude Purple People..." "Living/breathing" works both ways. Originalism takes us back to a single standard, a baseline.

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