Federal Courts and Nominations

How the Supreme Court’s “fauxriginalists” are warping the Constitution

…The truth is that so-called modern originalists or textualists, like the late Justice Antonin Scalia or his intellectual heirs Clarence Thomas and Amy Coney Barrett, also feel free to roam much farther afield than that, seeking justifications for their favored interpretation in English common law and philosophy.

As utilized by the so-called conservatives on the current court, textualism and originalism have become ways to muzzle the voice of the Constitution and keep it from rising from its draped featherbed to address the pressing issues of our own time (when, you know, our beds are often ordered online because we heard about them on a podcast).

But is the use of the term “originalism” by Scalia and his acolytes itself actually disingenuous?

That’s the argument of Praveen Fernandes of the Constitutional Accountability Center, who suggests that a true originalist approach to interpreting the Constitution would not provide conservative results, because the document is, on the whole, remarkably progressive. Instead, Fernandes says, judicial conservatives distorting the meaning of the Constitution by practicing fauxriginalism:

[P]rogressives have not been fighting originalism; we have been fighting fauxriginalism.  Fauxriginalism distorts the meaning of the Constitution, often by focusing selectively on some parts of the document, rather than by looking at the text, history, and values of the whole Constitution. Conservatives like to claim that originalism leads them to conservative results, but that’s because they too often give a cramped meaning to the Constitution’s text and ignore the constitutional history and values that help elucidate what that text means. In truth, conservatives have been a bit like the kid in our grade school class who delivered a book report, but who had only read the first chapters of the book — and didn’t even read them that carefully.



Read the full article at Salon.com.

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