The notion that conservative jurists, such as Supreme Court Justice Antonin Scalia, have the market cornered on constitutional interpretation is ludicrous, because their preferred method of interpreting the nation’s founding document is “fundamentally flawed,” writes Geoffrey R. Stone for The Huffington Post.
In “The Demise of ‘Originalism,” Stone, a distinguished law professor at the University of Chicago Law School and chair of the ACS Board, says the “Framers understood that they were entrusting to future generations the responsibility to draw upon their intelligence, judgment, and experience to give concrete meaning to these broad principles over time.”
There are several reasons why so-called originalism is flawed, Stone writes. For starters, “it is exceedingly difficult to know with any certainty what they did or did not think about concrete constitutional issues. As a consequence, judges purporting to engage in originalist analysis often project onto the Framers their own personal and political preferences.”
The result is unprincipled and often patently disingenuous jurisprudence. There is no evidence for the claims advanced by originalists, for example, that the original meaning of the Equal Protection Clause prohibited affirmative action or that the original meaning of the First Amendment included the notion that corporations had a constitutional right to spend unlimited capital to influence political elections. Both of these claims, however, are central to today’s conservative legal agenda.
Stone says there is an even “more troubling phase of conservative constitutional jurisprudence,” one he dubs “conservative activism.” This type of activism readily dismisses “constitutional claims by women, political dissenters, and racial, ethnic, and religious minorities, but at the same time aggressively” invalidates regulations on corporations or gun control laws.
Later today at the National Constitution Center in Philadelphia, Stone will participate in an event called “Judicial Activism Reconsidered.” For more information about the 6:30 p.m. event, including availability of tickets, visit the Constitution Center’s website