No. of Recommendations: 8
It's impossible to not delve into politics with this topic but I'll attempt to keep this as dry as possible. The core strategy behind
originalism is obtain immediate reversals of unwanted policy by claiming conflicts with "strict" interpretations of decades / centuries old language then relying on corrupted legislative processes to prevent those overturned precedents from being legislated back into law. All while claiming the intellectual and historical high ground while doing it. Historians and legal scholars analyzing court decisions over the past twenty or so years have identified numerous citations of old court cases or old speeches / correspondence of yesteryear politicians where the original language either appeared in a DISSENTING opinion that was rejected by a court majority or the original reference was completely misinterpreted because of changes in language usage over time for which these judges have no background or expertise.
From
https://watchingtheherd.blogspot.com/2022/07/abort...The true goal of this originalist claptrap is to provide a rationale for rejecting over a century of progress in civil rights, antitrust regulation, labor rights and criminal justice protections knowing that the special interests that will benefit from those rollbacks have perfected the art of paralyzing the existing gerrymandered, un-democratic legislative processes to ensure such protections cannot be re-enacted with explicit legislation -- quickly or perhaps ever.And that's not the worst of the situation we are in.
The real problem with this originalist utopia we are entering is that in it, the enforcement of laws will inevitably revert to a mode in which the written word has no consistent meaning at all. Imagine a state enacting a law stating "Abortion is prohibited under criminal penalty for all cases." If subsequent cases arise in which a judge simply redefines the term "abortion" when ruling in case A involving the rape of a ten year old because that circumstance is horrid in the judge's mind but NOT redefining the term "abortion" when ruling in case B involving a twenty seven year old woman, then we are no longer operating under the rule of law. We are operating at the whim of whichever judge a plaintiff or defendant draws at trial and the whims of that judge from case to case which is a violation of the equal protections clause.The same violence to reason and logic required to justify rejecting decades and centuries of precedent renders it impossible to put any faith in the subsequent interpretation of remaining laws, especially when the consequences of the "desired" original interpretations create bad outcomes for those in power who have no problem arbitrarily changing their interpretation of laws to avoid personal consequences for themselves.
WTH
