July 13, 2010
Bork and Beethoven

Posting about Kagan and Coburn the other day led me back to Richard A. Posner’s book, Overcoming Law. Posner, chief judge of the U.S. Court of Appeals for the Seventh Circuit and a Reagan appointee, is nobody’s idea of a liberal. But he is everybody’s idea of a thinker. In a brilliant chapter called “Bork and Beethoven,” here’s what he has to say about the childish and ahistorical theory of orginalism with which Justices Roberts, Alito, Thomas and Scalia rationalize their prejudices:

Originalism is not an analytic method; it is a rhetoric that can be used to support any result a judge wants to reach. The conservative libertarians whom Bork criticizes (Richard Epstein and Bernard Siegan) are originalists; his disagreement with them is not over method, but over result. The Dred Scott decision — to Bork, the very fount of modern judicial activism — is permeated by originalist rhetoric…

Some of the most activist judges, whether of the right or of the left, whether named Taney or Black, have been among the judges most drawn to the rhetoric of originalism. For it is a magnificent disguise. The judge can do the wildest things, all the while presenting himself as the passive agent of the sainted Founders — don’t argue with me, argue with Them.


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Posted by Jerome Doolittle at July 13, 2010 06:07 PM
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If they really plan to follow originalism, all of us peons and other wage slaves would have 3/5 of a vote for purposes of counting a states population. Corporations being whole people would be counted as a whole vote.

But wait a minute. Aren't many of our corporations foreigners. Why are they counted at all when it comes time to speak their minds to the American people. I say put duct tape over their mouths at election time if they have ANY entity that's owned overseas.

Incidentally, fix that spelling of originalism. You're making me think of folding Japanese paper - or something else entirely.

Posted by: Buck on July 14, 2010 12:28 AM
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