Let me push back one more time. If what you're saying is true, and no judge no matter how much integrity they have can be truly originalist - what do we do? Is our judicial system dead? Should we even try to pick originalists or give up on a third branch and let it be a super legislature? What comes of rule of law? Doesn't this seem like a problem?
What a dilemma you've conjured here: "Originalists" or a super legislature and a dead judicial system. There is clearly nothing between, either we pretend that text written in the 1700s is directly applicable to 2020 or democracy is dead?
Originalism is a modern invention. It was not even a philosophy of jurisprudence until approximately the 1970s.
Why does a legal system need to be 'originalist' to be valid? That seems like some pretty stiff kool-aid...
Via ye olde wikipedia:
'In the context of United States law, originalism is a concept regarding the interpretation of the Constitution that asserts that all statements in the constitution must be interpreted based on the original understanding "at the time it was adopted".'
This is the start of a very short road to bandying around conflicting subjective interpretations of what the original founders believed, rather than what's in the text of the constitution or the law. You can have rule of law without second-guessing the founders; if you get unintended consequences, update the law and/or constitution accordingly. It's meant to be a living document, right? In the meantime, protections for gay and transgender people based on equal rights laws is a feature, not a bug.
[on edit: To put an even finer point on it, Alito's arguing originalism because he doesn't like the text. That is fundamentally against the rule of law.]
The constitution was not originally intended to be a 'living' document; that theory came about in the progressive era as a way to change the meaning of the constitution without amending it.[1]
I meant living document in the prosaic sense, of document meant to be regularly updated. The amendment process is baked in from the start, so was clearly intended from the beginning.
You could look to the legal system in the United Kingdom, Canada or Australia, which has the same basic structure, without the bizarre political pageantry surrounding the appointment of apex court judges. In these countries judges are not considered “liberal” or “conservative,” at least not by the general public. Theories of judicial interpretation are treated as an obscure philosophical concept taught at law school, not a mainstream political issue that affects elections.
UK, Canada, and Australia all have radically different constitutions; very hard to compare any of them to the US Constitution. Broadly speaking, the UK one is more a body of law, the Canadian is a single document which the government can override, and I'm not too familiar with the Australian one, but it seems fairly limited compared with the others mentioned.
"Originalism" is not possible in practice because it would lead to absurd outcomes. It is reasonable to suspect that "originalism" is a construct in bad faith, to cover a preference for old bigotries and a less than coherent grab bag of right wing positions.
So you would adhere to the original language of property covenants forbidding sale to black people because that was the clear intent of the authors of those covenants? Hey, sanctity of contract!
And do not tell me those contracts were considered illegal at the time they were written.
Contracts can be invalidated (post-hoc) by laws, and both (contracts and laws) can be invalidated by constitutions. Such provisions (in the USA) would have been rendered unenforceable by the Fourteenth Amendment.
You should accept that the supreme court is a nakedly political body just like the other two branches. The idea of some impartial body of judges who can strike down laws or in the case of qualified immunity just make them up is absurd. Do you think that the fact that judges often split 5-4 along ideological lines is just a coincidence, or that conservatives put such a high importance on the court during the last election so they can elect an "originalist"? The garbage passed by Roberts about "balls and strikes" is insulting, and the fact that people blindly accept it is beyond me.
