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01/30/2013

Jason Mazzone on Jeffrey Toobin on Originalism (UPDATED)
Michael Ramsey

At Balkinization, Jason Mazzone: The Two Toobins.  Professor Mazzone quotes Jeffrey Toobin in The New Yorker:

Some Justices like to assert, or pretend, that the Constitution has a single meaning, and that each case thus has only one correct resolution. This view is especially pronounced among conservatives, who, in recent years, have claimed that they can identify the original intent of the framers and use their eighteenth-century wisdom to resolve any modern controversy.

Mazzone comments:

Perhaps some dumbing down is needed for readers of The New Yorker but surely it isn't hard to describe originalism accurately. Originalism's proponents on the Court (and in the academy) don't seek to "identify the original intent of the framers" because (a) their focus is on original public meaning not intent and (b) the framers' views/intent are not decisive in determining that meaning. Moreover, it takes a remarkable obtuseness to conclude that originalists believe eighteenth-century meaning can "resolve any modern controversy." Just the opposite: originalists often say that the Constitution is entirely silent on an issue presented--abortion, say--and resolution of it must therefore be left to the political process. 

(An aside: I agree with Professor Mazzone regarding Toobin's description of originalism, but it's a minor point in what seemed an otherwise reasonable column about the role of political movements in shaping Supreme Court doctrines and outcomes.)

UPDATE:  Brad DeLong has a brief comment: The fact that "originalists" are now embarrassed by the phrase "original intent" doesn't mean the rest of us have to pretend.  Pejman Yousefzadeh replies at length to DeLong: The fact that Brad DeLong doesn't understand conservative jurisprudence doesn't mean that the rest of us have to pretend.