"As ⁦@ScottTurow⁩ writes in ⁦@VanityFair,⁩ originalism is a manufactured methodology ..."

[mahatmakanejeeves]

Kevin M. Kruse Retweeted

This piece makes more sense in a world where originalism was actually what justices were doing. Alito, for example, is no originalist. He will wax philosophical about great historical values to give his right-wing views the patina of authority but historical facts do not control.

As ⁦@ScottTurow⁩ writes in ⁦@VanityFair,⁩ originalism is a manufactured methodology that “allows the dead hand of a disreputable past to place a choke hold on citizens today.” https://vanityfair.com/news/2022/06/chaos-in-john-robertss-court

Link to tweet

[tishaLA]

1. I have a great article from years ago

by literary critic and legal scholar Stanley Fish called "There Is No Textualist Position" that makes a similar argument:

... There is no textualist position because there is no candidate on behalf of whom a would-be textualist could argue. A textualist like Scalia will say that his candidate is the text and that meaning can be decoded by looking to the combination of lexical items (as they are glossed in standard dictionaries) and grammatical structures, with a little help, in the case of obscurity or ambiguity, from legislative history or judicial precedent. But, as I have been arguing, lexical items and grammatical structures by themselves will yield no meaning—will not even be seen as lexical items and grammatical structures—until they are seen as having been produced by some intentional agent. A text whose meaning seems perspicuous and obvious right off the bat is a text for which an intentional context has already been assumed, and it is also a text whose clarity and stability can always be troubled by an argument designed to put another intentional context (and another perspicuous meaning) in place. It is the specification or assumption of intention that comes first; the fact of a text with meaning comes second. The text, in short, has no independence; it is an entirely derivative entity—something else (an animating intention) must be in place before it can emerge, as text—and as a derivative entity it cannot be said to be the source or location of meaning. ...

[usonian]

2. Could you expand? I ran into an article limit at Vanity Fair

and my Firefox extension to "Bypass Paywalls Clean" isn't opening that door.

A web search turned up a bunch of dry stuff.

For what it's worth, I found a subreddit mirroring DU posts.
https://www.reddit.com/r/DemocraticUnderground/

My interest is not "legalese" but to ascertain just how much the founders' "original sin" of accepting slavery and racism is the unspoken motivation behind a static interpretation of the Constitution, and how we can really guarantee rights that "originalists" can't erode and undo.

In fact, according to metro.us
https://www.metro.us/can-the-constitution-be-changed/

Did the Founding Fathers intend the Constitution to be changed?

Thomas Jefferson did. In fact, he believed that the Constitution should be updated every 20 years. He expressed this belief in a 1789 letter to James Madison.

“No society can make a perpetual constitution, or even a perpetual law,” he wrote. “The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please, during their usufruct. They are masters too of their own persons, and consequently may govern them as they please. But persons and property make the sum of the objects of government. The constitution and the laws of their predecessors extinguished then in their natural course with those who gave them being. This could preserve that being till it ceased to be itself, and no longer. Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.”

That one of the Founding Fathers considered a Constitution older than 20 years “an act of force” could come as a shock to some “strict Constitutionalists.”

Now, that's a bit over the top, as the "sundowned" assault weapons ban proves, but it's interesting.
One wonders, as the Extreme court systematically undoes rights by twisting interpretation to suit their prejudices, whether we can write and adopt "bullet-proof" laws (pun intended) to guarantee rights that can't be undone by people wearing black robes over their klannish white robes.

[mahatmakanejeeves]

3. I'm not a subscriber. Try your library. NT