Originalism is fine in theory when coupled with judicial restraint. However, in practice, it has become justification for big-C Conservative justices to actively impose their views, overriding the democratic legislative process.
We're not going to settle this in the comment section of HN, but I happen to agree with this opinion:
As the Warren and early Burger Courts faded into history, originalism drifted away from its critique of judicial activism. The political conservatives who had disliked the countermajoritarian output of the Warren and early Burger Courts developed a fondness for judicial activism once there was a conservative majority on the Supreme Court. Originalism was thus transformed from a shield against what its proponents saw as illegitimate liberal decisions striking down laws adopted by conservative lawmakers into a sword that could be wielded by conservatives to strike down laws adopted by liberal lawmakers.
Originalism coupled with judicial restraint could not invalidate affirmative action, campaign finance regulations, or gun control. Abandoning judicial restraint led to an "unbound" form of originalism that licensed conservative judicial activism, even as judicial conservatives continued to complain about liberal judicial activism in cases involving such matters as abortion, the death penalty, and gay rights.
Do you have a non-activist originalist argument for Alito's on-going stance against legal protection of gay marriage? In Obergefell v. Hodges he stated that the Due Process clause protects only rights "deeply rooted in this Nation's history and tradition". He's making up a justification to allow a minority of conservative opinion to prevent gay people from getting married. How isn't that activism?
I don't practice law but it seems obvious to me how one would make rulings about marriage laws before and during Obergefell v. Hodges. One of the central tenants of originalism is using words/language according to their original meanings (within reason). Since when have we understood marriage to include same sex? Long after these laws for marriage were put on the books in many cases.
So I turn it on you - I'm not an expert so help me understand - how is Obergefell v. Hodges not legislation from the bench when it changes the meaning of these laws unilaterally?
I never made any argument about whether or not Obergefell v. Hodges is activism. You should read the 5-4 decision yourself and decide whether or not you think it is.
My personal opinion is that I don't care whether others think it's (liberal) activism.
My beef is that Alito is also engaging in (conservative) activism but claiming he is not by hiding behind originalism. I won't belabor this point further because I've already cited a source that makes the argument better than I can.
Disclosure: I want our government to use every tool at its disposal to make the world a better place. Of course the constitution should be interpreted in line with modern values in order to extend rights and protections to people. The declaration:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
The preamble:
"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
Those are our stated shared values. Those align with my values. Not allowing gay people to marry is contrary to those values.
That five judges found a constitutional justification to extend the right of marriage to all, I'm glad for. If people want to call that "activism" so be it. Now, Alito still wants to take that right away. Indeed, he wants to be able to express that view and not be called a bigot for it. I find it deplorable to try to hide that view behind a legal theory called originalism.
Any originalist argument against "Obergefell v. Hodges" could equally be applied to "Loving v. Virginia."
http://www.dorfonlaw.org/2017/08/how-determinate-is-original...
We're not going to settle this in the comment section of HN, but I happen to agree with this opinion:
As the Warren and early Burger Courts faded into history, originalism drifted away from its critique of judicial activism. The political conservatives who had disliked the countermajoritarian output of the Warren and early Burger Courts developed a fondness for judicial activism once there was a conservative majority on the Supreme Court. Originalism was thus transformed from a shield against what its proponents saw as illegitimate liberal decisions striking down laws adopted by conservative lawmakers into a sword that could be wielded by conservatives to strike down laws adopted by liberal lawmakers.
Originalism coupled with judicial restraint could not invalidate affirmative action, campaign finance regulations, or gun control. Abandoning judicial restraint led to an "unbound" form of originalism that licensed conservative judicial activism, even as judicial conservatives continued to complain about liberal judicial activism in cases involving such matters as abortion, the death penalty, and gay rights.
http://www.dorfonlaw.org/2019/11/why-not-to-be-originalist.h...
Do you have a non-activist originalist argument for Alito's on-going stance against legal protection of gay marriage? In Obergefell v. Hodges he stated that the Due Process clause protects only rights "deeply rooted in this Nation's history and tradition". He's making up a justification to allow a minority of conservative opinion to prevent gay people from getting married. How isn't that activism?