Reading "We the People"

Picador pb, 2018, by Erwin Chemerinsky.

Fascinating, amusing, information rich, but very poorly edited.

Subtitle: A Progressive Reading of the Constitution for the Twenty-First Century.

I've read to the end of Chapter 2.

Gorsuch's originalism is apparently much like Scalia's.

The book came out late enough for EC to know Chump would name another, but too soon to know it was Kavanaugh.

EC several times defines "originalism", most commonly as insisting a provision of the constitution be read according to the meaning of its words as they would have been understood by an adequately informed reader at the time of adoption.

Departures from such meaning can only be licensed, Scalia insists, by a constitutional amendment.

Scalia in his writings rejected recourse to intentions in the sense of aims or purposes, and expectations as to how provisions would or would not be read or understood, of relevant persons regarding a provision (Framers, authors, ratifiers, voters, or whoever), and heaped contempt upon incorporation.

EC joyfully recounts numerous of his decisions in which he crucially relies on these.

And others in which he flagrantly departs from or flatly contradicts anything remotely like the original meanings of the actual words, sometimes in such cases appealing to aims or expectations as decisive.

And others yet in which he departs conspicuously from all these factors: original meanings, aims, and expectations.

Of course what Scalia never departs from is commitment to reading the text in accordance with conservative ideology in service to conservative values and conservative goals.

EC's point is that originalism is a hoax and a smokescreen, a pretense of objective and value free judging behind which conservatives provide readings and rulings infused with conservative values in service to conservative preferences.

Most of the time what originalism requires we do can't be done, anyway, and mostly when it can it shouldn't.

EC supports a method of interpretation according to which neither the presumed original meanings of the words, nor the aims of relevant persons regarding a provision, nor the expectations as to how it would or would not be read of relevant persons, at the time of adoption, need be controlling.

Any or all may be departed from, and he gives highly persuasive, generally liberal examples, citing cases.

More to come.