‘ Originalism’ hubris
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.