Ketanji Brown Jackson and Originalism
Dec. 18th, 2022 08:25 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
ndrosenJudicial originalism is not necessarily the same as political conservatism, still less the same as political conservatism imposed from the bench. The late Justice Scalia was personally conservative, but as an originalist, he judged cases by his best understanding of the Constitution, not by his personal preferences, even when doing so put him on the side of a flag burner or of a lawbreaker whose Fourth Amendment rights had been violated. This recent article in Reason on Justice Ketanji Brown Jackson and the future of progressive originalism may be of interest to my friends, and friends of friends.
A commitment to the view that the words of the Constitution should be interpreted according to their original public meaning, and do not authorize whatever the present majority wants, or whatever a particular judge thinks good, may sometimes obstruct genuine reforms, but can also constrain the judiciary to stand firm against various abuses and bad ideas. The article notes that Frederick Douglass was an originalist in his old age; one may observe that a firm judicial commitment to the meaning of the Thirteenth, Fourteenth, and Fifteenth Amendments, together with the muscle to enforce judges’ rulings, would have been a major obstacle to the imposition of Jim Crow.
A commitment to the view that the words of the Constitution should be interpreted according to their original public meaning, and do not authorize whatever the present majority wants, or whatever a particular judge thinks good, may sometimes obstruct genuine reforms, but can also constrain the judiciary to stand firm against various abuses and bad ideas. The article notes that Frederick Douglass was an originalist in his old age; one may observe that a firm judicial commitment to the meaning of the Thirteenth, Fourteenth, and Fifteenth Amendments, together with the muscle to enforce judges’ rulings, would have been a major obstacle to the imposition of Jim Crow.
