asaris

I think originalism makes some sense as a theory -- text means what it means, and the mere fact that it's 200 years later can't change the text's meaning, right? So I think that at least some of the originalists are such not because it helps support their conservatism, but because they honestly believe it. I think J. Thomas fits into this category. But others (I'm looking at you, Scalia) seem to use originalism when it helps them get the result they want, and discard it when it doesn't help (I'm thinking Gonzalez v. Raich). I tend to prefer the somewhat conservative but more pragmatic O'Connor, personally, though part of me misses Brennan.

Side note: I was having a conversation about originalism with a friend, and said, "I think Scalia's philosophy makes sense in a vacuum." To which she replied, "I'd like to see Justice Scalia in a vacuum."

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"Die Deutschen meinen, daß die Kraft sich in Härte und Grausamkeit offenbaren müsse, sie unterwerfen sich dann gerne und mit Bewunderung:[...]. Daß es Kraft giebt in der Milde und Stille, das glauben sie nicht leicht."

"The Germans believe that power must reveal itself in hardness and cruelty and then submit themselves gladly and with admiration[...]. They do not believe readily that there is power in meekness and calm."

-- Friedrich Nietzsche