Originalism under attack

A post on the Balkinization blog has links to abstracts of three scholarly papers attacking the doctrine of originalist interpretation of the Constitution. I am glad to see that originalism is finally under major attack -- I wonder what took so long. Originalism needs to be recognized for what it is, a very pernicious form of judicial activism. Originalists have gone so far as to put words in the mouths of the Founders.

One of the papers has the blunt title, "Originalism is Bunk". Another paper, titled "Originalism's Living Constitutionalism", says,
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Originalists' claims about the unique and exclusive legitimacy of their theory -- that originalism self-evidently represents the correct method of constitutional interpretation founder when one considers that originalists themselves cannot even begin to agree on what their correct approach actually entails. And their claims that originalism has a unique ability to produce determinate and fixed constitutional meaning, and that only originalism properly treats the Constitution as law and properly constrains judges from reading their own values into the Constitution, stumble when one considers the rapid evolution and dizzying array of versions of originalism . . . .A judge committed to the originalist enterprise in fact has significant discretion to choose (consciously or unconsciously) the version of originalism that is most likely to produce results consistent with her own preferences. Originalists might despise the notion of a living constitution, but they have gone a long way towards creating a living constitutionalism of their own, the very existence of which undermines their own rhetorical and normative claims to superiority.

The third paper is titled "Rebooting Originalism".

IMO the poster child of the evils of originalism is Judge Jones' infamous commencement speech at Dickinson College, in which he showed extreme prejudice against the Dover defendants -- regardless of whether or not Intelligent Design is a religious concept -- by saying that his Dover decision was based on his notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions. He said,

. . . this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

Ironically, Judge Jones gave the speech while standing behind the Dickinson College seal, which was designed by USA Founders Benjamin Rush and John Dickinson and which contains a picture of an open bible and the college motto "religion and learning, the bulwark of liberty" in Latin.

Judge Jones was supposed to be neutral towards organized religions and he was not. By no stretch of the imagination are his above statements neutral towards organized religions.

In interpreting the establishment clause, originalists have portrayed the Founders as being everything from a bunch of blasphemous bible-burning satan worshippers to a bunch of bible-pounding holy-rolling fundies. Also, originalists have been conveniently ignoring the religious views of a very important Founder, George Washington -- see this and this.

The Federalist Society does not officially say that it is originalist but I strongly suspect that it is. It is named for the USA's first political party and the society's logo is a silhouette of James Madison. The question of Chief Justice John Roberts' membership in the society was an issue in his confirmation hearings.

Sometimes a broad non-originalist interpretation of the Constitution is necessary. For example, the Constitution does not generally prohibit states from interfering with interstate commerce, so the courts invented what is called the "dormant" commerce clause. Also, many big issues today were not even on the radar screens of the Founders -- e.g., environmental protection and freedom of speech on the Internet.
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