lunes, 25 de marzo de 2019

El propósito del originalismo y de la autoridad frente a unenumerated rights

"Self-described “originalists” can reach completely divergent conclusions regarding the Constitution, while purporting to follow the same methodology! Some scholars have even defended the activist abomination of Obergefell on “originalist” grounds. As I have stated, “If the ‘new’ originalism is so malleable that it can be pounded into the shape of any desired result, it is not a useful guide for constitutional decision-making.”

I use the term “originalism” more broadly than the specialists to mean taking the Constitution seriously as a legal text—and interpreting it accordingly. When the text is simply unclear, the judge should not guess at its meaning. If this makes me a “faint-hearted” originalist (as Justice Scalia described himself), or an “old” originalist (like Robert Bork), so be it."

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