“The End Of Originalism” Round Two: Ledewitz Doubles Down

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Publish Date:
July 9, 2017
Author(s):
  • Barnett, Randy
Source:
The Washington Post - The Volokh Conspiracy
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Summary

In this post, I replied to this op-ed by Duquesne law professor Bruce Ledewitz, who has now responded with this lengthy blog post of his own. We will get to the particulars in a moment, but first a general observation. As with his original op-ed, Ledewitz’s more extended reply is deeply unscholarly. In criticizing originalism and making assertions about original meanimg, it is devoid of any reference to any argument or scholarly analysis offered by any contemporary originalist. Instead, like others in this genre to which I responded during the Gorsuch nomination, his new response relies on its own assumptions about what “originalism” is or must be, assumptions largely borrowed from (the far more scholarly) criticisms of originalism made by Stanford law professor Paul Brest some thirty-seven (37!) years ago in an article that coined the label “originalism.” Professor Ledewitz is either unaware of the substantial body of originalist theory and research that has arisen in the past three decades–which is unlikely–or he simply prefers to ignore it because actually dealing with the position of originalists today would be more challenging for him. While this is to be expected from a political polemicist, it is deeply disappointing for this to come from a tenured professor of constitutional law at an American university.

Fact check: Misleading. As Michael McConnell showed in the 1990s (see here and here), nearly everyone in Congress who supported the 14th Amendment thought it barred de jure school segregation–though under the Privileges or Immunities Clause, not the Equal Protection Clause–and it was only super-majority voting rules in both the House and Senate that prevented them from prohibiting it. …

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