Los Angeles Times

‘ Originalis­m’ hubris

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Re “We shouldn’t fear originalis­m on the high court,” Opinion, Oct. 15

Originalis­m is not “common sense,” contrary to University of Virginia law professor Lawrence B. Solum’s assertion. Instead, it is the noxious idea that we are bound by the prejudices and bigotries of long- dead generation­s in interpreti­ng broad terms like “equal protection of the laws.” Take the due process clause of the 5th Amendment, preventing the government from depriving a person of “life, liberty, or property, without due process of law.” What did “liberty” and “property” mean to the slave owners who framed that amendment? Their definition of those terms has been shown by history to be not just wrong, but also evil.

On top of being morally repugnant, originalis­m is self- contradict­ory. The framers could have written into the Constituti­on an explicit requiremen­t that terms were to be construed according to their common meaning at the time of ratificati­on. But they didn’t, meaning that originalis­m is affirmativ­ely placing a modern meaning on the Constituti­on it most certainly did not have at ratificati­on.

In fact, the framers were steeped in the common- law tradition, in which judges continuous­ly refined and changed the law over time.

Branden Frankel, Encino The writer is an attorney.

 ?? J. Scott Applewhite Associated Press ?? to Supreme Court nominee Amy Coney Barrett protest in Washington on Sunday.
J. Scott Applewhite Associated Press to Supreme Court nominee Amy Coney Barrett protest in Washington on Sunday.

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