An Originalist Court!

An Originalist Court!

On another site the other day, I commented that the Justices (Judges, too) that Trump is appointing are not so much conservative (or liberal) as they are originalists, as was Scalia. The term is one from the law bloggers, and it means that they look at what the Constitution says, and say it means what it says. Sort of a civil American Sola Scriptura. Like that concept, it doesn’t preclude change, nor does it disallow other influences especially over time, but it does state that they may not contradict the Constitution. It matters a great deal going forward. David French has an outstanding article up at National Review on the post-Kennedy Court. [Y]ears ago, when I was a young lawyer, I had an interesting conversation with a much older judge. He was a Democrat, an old-school liberal, and he said something revealing: “There’s the law, and then there’s what’s right. My job is to do what’s right.” Or, to put the philosophy in the words of one of my leftist law professors, “You determine the outcome first, then you do your reasoning.” Time after time, that’s exactly what Justice Anthony Kennedy appeared to do. I can think of few better summaries of Kennedy’s jurisprudence — especially in the cases that fired his passion the most — than this infamous passage from Planned Parenthood v. Casey : “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the […]

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