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01/14/2022

Jack Beermann: The Immorality of Originalism [Updated with a Comment from Andrew Hyman]
Michael Ramsey

Jack Michael Beermann (Boston University School of Law) has posted The Immorality of Originalism (56 pages) on SSRN.  Here is the abstract:

The central claim of this essay is that in interpreting the U.S. Constitution, it is immoral to choose original intent over social welfare, broadly conceived. Once this argument is laid out and defended on its own terms, I support the central claim with a variety of arguments, including the defective process pursuant to which the Constitution was enacted, the deeply flawed substantive content of the Constitution, the incongruity of fidelity to the views of a generation of revolutionaries, the current virtual imperviousness of the Constitution to amendment, the failure of the Constitution to resolve fundamental questions concerning the allocation of power within the government, which leads to dependence on the un-democratic Supreme Court to resolve important and controversial social issues and finally originalism’s tendency to force otherwise honorable people to lie or obfuscate about the reasons for their official decisions.

ANDREW HYMAN comments (19 Jan. 2022):  Professor Beermann mentions that “The title is, of course, designed to get attention the way that scholars often do with outlandish or extreme claims. A better title might have been ‘Originalism versus Welfare.’” Personally, I try to avoid making outlandish or extreme claims that could mistakenly be taken seriously, because I don’t want people to think I’m outlandish or extreme, and there’s also something to be said for accurate labeling.  But maybe I’m missing an opportunity, if indeed all publicity is good publicity. Professor Beermann also confesses he is unsure whether “non-originalist constitutional reasoning would lead to better decisions than originalism.”  For sure, sometimes it would and sometimes it wouldn’t, and there is the further option of getting rid of constitutions and constitutional reasoning altogether (which I would prefer instead of allowing judges to freely contradict original meaning).