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Newfound Originals

The Washington Post has a good article on the divergence of "originalist" thought in Justices Scalia and Thomas' respective opinions in Brown v. Entertainment Merchants Association (the violent video game case). (Opinion, briefs and coverage at SCOTUSblog.)

Of course, one could deride WaPo for failing to have previously discovered that all originalists are not alike and that the philosophy of originalism is profound and diverse. But the article is clear and blessedly free from snark and derision, so I'm thankful for the attention to a critical debate in Supreme Court jurisprudence.

On the other hand, I can't resist sharing the articles parting words:

Originalism is still a relatively young theory of constitutional interpretation....

That is a shame.

Categories > Courts

Discussions - 2 Comments

I kind of think Bullcoming v. New Mexico is a more interesting split.

Sure it puts Thomas and Scalia on the same side, but it has them with Ginsburg +Sotomayor+Kagan. vs. Kennedy, Breyer, Alito and Roberts.

I don't think Obama has really changed the court much, but this is a 5-4 that probably doesn't turn out this way without Obama's picks...but then again no one really pays attention to the sixth amendment.


That is a Bill Clinton (G), Obama (S)+ (K) Reagan (S) + Bush Sr. (T) vs. Bush Jr. (R) + Bush Jr. (A) + Bill Clinton (B) + Reagan (K).

Reagan and Clinton nominees split and cancel out, so you are essentially left with Obama's 2 and Bush Senior's pick trumping the two Bush Jr. picks.

If Barnes thinks that originalism is such a "relatively young theory of constitutional theory" how does he account for the written decisions of the Court prior to around 100 years ago? What about Chief Justice Marshall's corpus of opinions or even Chief Justice Taney's opinion in Dred Scott? Obviously Dred Scott was wrongly decided because Taney completely misstated the original intent of Founders when it came to slavery--not because Taney attempted to find the original intent of the Founders.

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