Misunderstanding Originalism
Creating a constitutional morality is beyond the judicial power.
egal conservatives find themselves in an unusual position: originalism has reached unprecedented acceptance within the judiciary and the bar. A majority of Supreme Court justices—including at least one appointed by a Democratic president—identify as originalists, or at least strive toward originalism. Guided by the original understanding of those who ratified the Constitution and the Reconstruction Amendments, the High Court has overruled Roe v. Wade, ended the use of race in higher education, and recognized the individual right to own firearms.
But some find these successes disorienting. Originalism’s victories have triggered an important debate among conservatives. Some wonder if originalism is up to the task of fashioning an approach to constitutional interpretation rooted in a conservative morality that can supply a positive agenda for law and policy. For these conservative critics, the moral neutrality of originalism, which arose in opposition to the explicit policymaking of the Warren Court, appears to be its central defect.
Constitutionalism
Amicus Brief: Hon. William P. Barr and Hon. Michael B. Mukasey in Support of Petitioners
Former AGs Barr and Mukasey Cite Civitas in a SCOTUS Brief
Rational Judicial Review: Constitutions as Power-sharing Agreements, Secession, and the Problem of Dred Scott
Judicial review and originalism serve as valuable commitment mechanisms to enforce future compliance with a political bargain.
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State Courts Can’t Run Foreign Policy
Suncor is also a golden opportunity for the justices to stop local officials from interfering with an industry critical to foreign and national-security policy.
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Separation of Powers and Our Constitutional Freedoms
'Separation of Powers' contains something of benefit to everyone, from first-year law students to grizzled veterans of the post-New Deal wars.
Justice Alito Is the Jurist America Needed
Mollie Hemingway’s recent book provides just enough information about Alito’s life to satisfy those who would like to know about his upbringing and life before joining the Court, and, more importantly, how that upbringing helped to shape his values and approach to judging.
