Today, the Senate is scheduled to elevate Amy Coney Barrett–a rigid ideologue who has never tried a case– to the Supreme Court. During the fiasco that has substituted for her vetting, we’ve heard a lot about “originalism.”
A while back, a reader of this blog reminded me of Thomas Jefferson’s opinion on originalism, contained in a letter he wrote to Samuel Kercheval on July 12, 1816. Jefferson wrote
“I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors.”
The philosophy of “originalism” was popularized by Antonin Scalia, who tended to employ his version of it when he disapproved of those “changes in manners and opinions” and ignore it in the many cases where it was clearly unworkable.
As I have previously explained, there is a version of originalism that does work, that does keep the constitution from being simply what nine people in black robes say it is.
In that version of originalism, courts are required to protect the values and principles that the founders were clearly trying to protect. James Madison could never have anticipated new methods of communication–radio, movies, television, the internet–but he had very clear ideas about protecting expression against government censorship. He, Jefferson and several other Founders also clearly expressed their beliefs in the importance of separating government from religion. Courts today must honor the Founders’ devotion to those and other principles embedded in and protected by the Bill of Rights.
Fidelity to those principles is the only workable and intellectually honest form of originalism, and as Edwin Chereminsky recently pointed out in an editorial for the New York Times, it is definitely not the originalism of Amy Coney Barrett.
Chereminsky is a prominent legal scholar, and Dean of Berkeley’s law school, and he points to the numerous problems with Barrett’s purported “public” originalism–the notion that the constitution must be interpreted to mean what the public thought it meant when it was ratified.
In fact, under the original public meaning of the Constitution, it would be unconstitutional to elect a woman as president or vice president until the Constitution is amended. Article II refers to them with the pronoun “he,” and there is no doubt that original understanding was that only men could hold these offices.
Throughout American history, the Supreme Court has rejected originalism and protected countless rights that cannot possibly be justified under that theory. For example, the court has interpreted the word “liberty” in the Constitution to protect the right to marry, to procreate, to custody of one’s children, to keep the family together, to control the upbringing of one’s children, to purchase and use contraceptives, to obtain an abortion, to engage in private adult consensual same-sex sexual activity, and to refuse medical treatment.
The Dean points out that rejection of Barrett’s understanding of originalism is anything but new. He quotes the 19th century Chief Justice, John Marshall, who wrote that “we must never forget that it is a Constitution we are expounding,” a Constitution “meant to be adapted and endure for ages to come.” Furthermore,
It is a myth to say that an “original public understanding” can be identified for most constitutional provisions because so many people were involved in drafting and ratifying them. In teaching constitutional law, I point to the many instances where James Madison and Alexander Hamilton disagreed about such fundamental questions as whether the president possesses any inherent powers.
Chereminsky makes a point I also make to my classes: how can “original public meaning” guide today’s courts in deciding whether the police can take DNA from a suspect to see if it matches evidence in unsolved crimes, or obtain stored cellular phone location information without a warrant?
The “public originalism” invented by Scalia and embraced by Barrett is an ahistorical cover intended to obscure and justify the judicial activism they profess to deplore–an intentionally dishonest construct allowing judges to favor the privileged and protect the status quo.
Placing Barrett on the Supreme Court dishonors both the Court and the Senators who vote to confirm her.
Professor – it’s Erwin Chemerinsky. When I was at DePauw my partner and I debated him and his partner (they were from Northwestern) at nationals in spring of 1975. I also corresponded and spoke w/him in 2017 when we filed a petition for writ of mandamus with the United States Supreme Court in which we sought to nullify the 2016 election. He had written a law review article a few years before about possible actions based on violation of Art IV, sec 4 (protection from invasion) of the Constitution. He was very generous w/his time & is a good guy.
Like many others, I see a strong resemblance between originalism and fundamentalism. Both rely on documents from another era, both base their thinking on the idea that there are absolutes, and both shun advances in knowledge. And I would add, both are as scary as hell.
Mark Small: You are correct! Mea culpa.
ironically, Amy Conway Barrett would not have been allowed to vote, much less be confirmed as a judge in the America of Madison, Hamilton, and Jefferson. So much for Originalism.
“The “public originalism” invented by Scalia and embraced by Barrett is an ahistorical cover intended to obscure and justify the judicial activism they profess to deplore–an intentionally dishonest construct allowing judges to favor the privileged and protect the status quo.”
Antonin Scalia and Clarence Thomas claimed “originalism” before Amy Cony Barrett made her public claim to advance her appointment to the Supreme Court; Sheila claimed “originalism” in a previous post. Wikipedia description of the Federalist Society claimed “originalism” and declared it to be “checking federal power, protecting individual liberty and interpreting the Constitution to it’s original meaning.” Cony Barrett will be the SIXTH CATHOLIC justice of the nine judicial positions on SCOTUS; under the previous and current FIVE CATHOLICS federal power has been on the auction block due to Citizens United. Under them we have had voting and civil rights curtailed to fit their religious doctrine and it is their obvious intent to continue and escalate these controls. Cony Barrett will aid Pence in his campaign promise to bring his racist and bigoted Indiana state laws, RFRA and the tightest anti-abortion law in the nation, to the federal level. The 1st Amendment original meaning that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” has been breached as religion has stealthily and steadily made it’s way into the all three branches of our federal government and at state levels by enacting laws based on one religion and “prohibiting the free exercise thereof” of numerous other religions.
The list of possible SCOTUS replacements given to Trump in 2016 by the Federalist Society contained the names of Gorsuch, Kavannaugh and Amy Cony Barrett. She did not appear “out of the blue” as a sudden Republican nominee; she has been hidden by them and hiding in the shadows of Trump’s administration waiting for the death of Justice Ruth Bader Ginsburg. She is an insult to the memory of one of our greatest Justices on the Supreme Court since Thurgood Marshall.
“You have your way, I have my way. As for the right way, the correct way, and the only way, it does not exist.” Neitzsche
But the obvious lack of “checking federal control” and “protecting individual liberty” is being shouted by the unmasked Trump administration as the Covid-19 Pandemic case and death counts escalate daily. The cheering for the record numbers of early voters is premature; we do not know if the votes will be counted, purged or which party they coming out in record numbers to vote for. Hold your applause till the Electoral College has posted their choice.
An originalist is a jurist who concocts legal arguments to reflect what they feel the founding fathers SHOULD HAVE thought about a particular issue.
It’s not only wrong. It’s immoral, it soils the institution, and it’s impact should be neutralized by adding whatever number of justices to the court it takes. It’s not packing the Court. It’s saving the Court. Packing is a reactionary term fully embraced and promoted by the media. And to suggest that the long-held norm of 9 justices is sacred in the era of the norm-busting Trump-McConnell era is just laughable.
Let’s keep our military, IC, Surveillance Apparatus, and the Federal Reserve as their original meaning of the framers. Originalism for the constitution is another fraud concocted by a group of white billionaires and their sycophantic worshippers. ACB’s religious cult is a perfect fit for one aspect of the eccentric oligarchs behind the republican party’s destruction.
Scalia was a Koch shill, and so is ACB. She’s an opportunist — not an activist. She’s willing to serve the fundamentalists, racists, patriarchs, who possess lots of money. I used the actual word to describe McConnell and got placed in Twitter jail.
The actual number of federal judges placed is around 200 by the Council for National Policy. They work with the NRA and other slimeball organizations, including many churches.
Do you still think our constitution was a masterpiece of democracy?
It was a finely balanced oligarchy which gave the appearance of a democratic republic. As Franklin said, all it would take was a little apathy to fall apart. Not sure why he didn’t see the oligarchs just taking control. They started on third base, for Christ’s sake.
Everything the people have gained has been a struggle that cost the lives of good men and women. Mostly dying in our country against our oligarchy-controlled government.
We gave the Democratic Party the power to fix things for the people in 2008, but Barrack Obama chose to help Wall Street and all the oligarchs who messed up our country in the first place. Not only did he hemorrhage seats as a result, but we also ended up with Trump in the White House, a populist candidate who was going to drain the political cesspool in Washinton. And once again, his priority was to enrich the wealthy oligarchs and himself.
If the Democratic Party screws this up, and many are predicting they will, I really don’t want to consider will happen in the next four years, but it won’t be pretty.
“The “public originalism” invented by Scalia and embraced by Barrett is an ahistorical cover intended to obscure and justify the judicial activism they profess to deplore–an intentionally dishonest construct allowing judges to favor the privileged and protect the status quo.”
Right you are JoAnn. Since it is clear to everyone not creating helium or bullshit, that Republicans are not about governing, but about power. They will do and say ANYTHING to grab power. To Scalia, and all the other Federalist ideologues, the term “originalism” is used to mask the primitive, caveman-like grab for control. The people? Well, they’ll just have to scurry along searching for the crumbs of freedom that the death cult allows them to have.
1. Republicans have been fighting the New Deal since 1934.
2. Citizens United was specifically adjudicated to benefit corporations/Republicans
3. The despicable attacks on Barack Obama and his initiatives by Republicans in Congress
4. The denial of Merrick Garland to have even a hearing.
5. Since the Affordable Care Act helps so many Americans, it is the most important element of Republican party restructuring of our government, i.e., pack the courts with idiots and ideologues to overturn that successful program … along with everything else that brown guy tried to put in place.
6. Open corruption from the likes of Mitch McConnell, Ron Johnson Lindsay Graham and all the rest of the Republicans who just can’t seem to remember who they serve.
A week from tomorrow is the beginning of the end for the cult of death, aka the Republican party. Barrett will be just another stooge of the right and the female version of Mr. jiggery pokery himself.
Sheila, yes!
Thomas Jefferson had gotten his thought process for his statement and many of his statements made through Scripture!
One of his known favorite Scriptures in the Jeffersonian Bible, was;
1st Corinthians 13:11-12 which reads; “When I was a child, I spake as a child, I felt as a child, I thought as a child: now that I am become a man, I have put away childish things. For now we see in a mirror, darkly; but then face to face: now I know in part; but then shall I know fully even as also I was fully known.”
There is no possible way that the writers of the Constitution could have foreseen manned flight, exploration of planets, automobiles, submarines, nuclear power, machine guns, computers, the Internet, television, radio, telephones, telegraph, instantaneous communication between people from opposite sides of the globe, eugenics, organ transplants, in vitro fertilization, stem cells, vaccines, the end of slavery, women voting, former slaves voting, and on and on and on.
So with the advancement of civilization, how could a document that governs that civilization remained stagnant? It’s not logical, and it’s hypocritical! A dead society is governed by a dead document, a living and advancing society is governed by a living breathing document!
I had a thought this morning. If a truly sincere and honest person, worthy of sitting on the supreme court were to be nominated under the current circumstances, I would have expected them to decline. There is the stink of Trump in this nomination. There is stink of Republican Senate hypocrisy on this nomination. There is the stink of completely partisan support. Yet we still have so many willing actors moving forward in this charade including the nominee herself. How much ego is involved? How much hubris?
Maybe all of these people honestly believe they are doing the best thing for their country, but I always know nothing is ever black and white, and when you have half the people in the room telling things just aren’t right, maybe it is time for a little self examination and honestly ask yourself what are your motives?
Pascal: It’s Coney, not Conway.
JoAnn: It’s Coney, not Cony.
And Kavanaugh has only one ‘n’, not two.
Dan Mullendore – My thoughts exactly. Why would ACB want this position under such animosity if she was not power hungry. I feel if she were such an exemplary judge, under such circumstances, she would decline.
Sorry, Linda and Dan, you are assuming that she has integrity and is liberated. She is just another corporate shill groomed by the Federalist Society and Leonard Leo. He’s been picking justices and stopping them for quite a few years.
Sheldon Whitehouse said this in 2019, “In the Judiciary Committee, we see the result over and over again—meaningless committee hearings where nominees parrot empty words about applying law to fact and respecting precedent; and then, once confirmed and on the bench, those nominees deliver dependably for the partisan and corporate donors behind this Federalist Society operation.”
You can read his entire speech here, which tells you who funds the Federalist Society. Here’s a hint, it’s the same people behind Trump and the GOP. It’s the same people who own Indiana and about 23 other states or 46 senators.
https://www.whitehouse.senate.gov/news/speeches/the-third-federalist-society
The country is at war with itself over change. Do we keep up or do we fall behind? Do we join the world or do we build a wall around our borders and become isolated among nations? Are we modern or are we static?
I can’t say that I understand the stasis argument. First it’s impossible but those who advocate it will point our that they just don’t like certain changes because the world behind us entitled them. Oh they like their phones and theirs status displaying cars and oversize houses and the local militia to enforce the order of their entitlement and the church of those who look alike but they want to be in charge of culture like Mao Zedong was. They want the authority to tell others when and what to change but they accept that what they want they are for and what they don’t want they are against, again like Mao felt entitled to.
That’s what sweet quiet ACB offered them in perpetuity. An opportunity to replace an agent of change, a leader in it not afraid of them, to a quiet seemingly educated advocate of power to those people who think exactly like she does.
Of course that’s intolerable and they know it. They expect Democrats next year to fix that problem too on top of all of the others that they leave behind but they hope when that happens they can pick up some badly needed political capital because frankly they are out of it.
We have to persist as RGB taught us. We have to run towards problems not run away. We have an excess of political capital in the vault and we are the people the Constitution empowered with the responsibility to retain our republic our democracy and our freedom to change as the world does.
I believe we are past what was intended and what should be. We may only be able to beat back the abuse of power with power. And then where are we? Maybe in 25 or 50 years we may return to fair and reasonable governing…..maybe.
It shouldn’t be surprising at all that the same group who cherry-picks the Bible would also cherry-pick the Constitution and ignore the inconvenient facts.
This is a great quote from Jefferson. I plan to send it to my friends and relatives who run around with a copy of the Constitution in their back pockets so that they can substantiate silly arguments like whether the Constitution has the words “right to privacy” in it.
I find it highly ironic that the only reason Amy Barrett will become a SCOTUS justice is due to the efforts of liberal feminists many of whom are lesbian women. If she is a pure originalist, she should not be allowed to serve as a SCOTUS justice because when the Constitution was written women were not allowed to vote, let alone serve in the government.
Since we are supposed to have separation of religion and state, she should recuse herself from any cases involving a woman’s right to abortion.
This is the 21st century not the 18th century when the Constitution was written. Much has changed. I don’t think anyone with a strict originalist interpretation will serve us well.
There is an old saying, “All warfare is based on deception”. Another saying is, “Truth is first Casualty of War”.
The GOP has used these sayings now as Standard Operating Procedure (SOP). The idea of Originalism or some Fundamentalist reading of the Constitution or other 18th Century documents is a smoke screen.
Religion is a part of the smoke screen, The real ideology of GOP Appointees to the courts is to maintain the power of Corporatism. Pastor Pence is the perfect front man a bible thumper.
The Trumpet uses this old saying from Sun Tzu, “If his forces are united, separate them. Attack him where he is unprepared, appear where you are not expected”.
The Trump Cult admires the Trumpet for his chaos as he smashes the norms of civilized discussion. His lies, bullying and deceptions are positives when viewed from the Trump Cult. The Trumpet and McConnell’s in ramming through ACB to Scotus is just one more example of Power which The Trump Cult admires and vocally cheers.
Power the one thing in life that cannot be faked – You either have it or you don’t and right now the GOP has the Power.
The point of the Constitution, as Sheila so succinctly stated, was to “to protect the values and principles that the founders were clearly trying to protect.” Republicans and evangelicals shouted their values from the rooftops so loudly and for so long that they convinced many that they would risk all to preserve them. Under their most recent god/authoritarian, we have learned that, between the two groups, they have abandoned all of the beliefs they once said they held sacred except for the immoral pursuit of power. For example, they no longer express attachment to values such as:
1. Honesty,
2. Empathy,
3. Love of non-Republican Americans,
4. Patriotism (think General Flynn, Roger Stone, Paul Manafort, Rudi Giuliani, adoration of Putin and Kim, etc.),
5. Fiscal responsibility (the main virtue Paul Ryan preached about),
6. Any values ever recommended by Jesus Christ,
7. Anti-racist talk, action, and movements,
8. Character/integrity, reasonableness,
9. Self-sacrifice,
10. Democracy,
11. Charity,
12. Avoidance of unnecessary suffering,
13. Healthcare for non-wealthy people needing it,
14. Loyalty (except to one man),
15. Helping the downtrodden.
And many, many more traits that differentiate decent people from others
Nor did they raise objections to any high ranking Republicans who publicly repudiated these virtues. As mentioned by several of the above writers, the entire Republican/evangelist value system was swept away in order to get to the only value these people still worship – power. “If I can’t control people or situations or institutions,” they seem to say, “what’s the point? I will do whatever it takes, including throwing out our system of government, to get my own way.”
I still feel some pity for their mindless ambition and their insane drive to do whatever it takes to the rest of us to help them reach their morality-free goals. But not much.
Betty; what benefit or personal pleasure do you derive by pointing out spelling errors on our comments?
Scalia’s Originalism is a proven fraud when he ignores” [a] well regulated Militia, being necessary to the security of a free State,” in the language that precedes “the right of the people to keep and bear Arms, shall not be infringed.” There is no accident that the explanation is in that sentence. What were the Framers thinking at that time? I don’t think it was wackos with AR-15s calling themselves militias, going to voting places.
Neitzsche via JoAnn: “You have your way, I have my way. As for the right way, the correct way, and the only way, it does not exist.”
But the BEST WAY does exist, best meaning that which is apt to get the most circumspect, practical, and wisest results.
Neitzsche’s remark too clearly advocates the anarchist view that your way and my way and absence of any way are the only ways available, roughly equal, and surrenders all governing to the might and brutality of the bully.
From John comes a quote from 1st Corinthians:
“When I was a child, I spake as a child, I felt as a child, I thought as a child: now that I am become a man, I have put away childish things.”
The original author of that quote had not been exposed to transactional psychology. If he had, I think it would read something like this:
When I was a child, I spake as a child, I felt as a child, I wanted to behave as a child, but adults dictated denial of many behaviors I sorely desired: now that I am become a man, I can do all the childish things I always wanted to do.
If I were President Trump, I would right now enlarge the court. A bill to do so, no different than a farm bill, could be passed in days. Likewise, six new idiot Justices could be affirmed before January 20.
Joe Biden said “I don’t know what she’ll decide” in regards to Barret. Joe Biden & Nancy Pelosi are Catholics who have integrated politics/religion to their time and place. Not all Catholics are fundamentalists. I would assert Pence is not a good example of what a Catholic used to be. He left Catholicism due to wanting more freedom to pursue his power pursuit? He seems to like to herd fundamental Catholics behind him though. Severability will be considered on the ACA decision before the court. Can the total inclusion mandate be removed, and the rest of the ACA stand? I hear she’s a stickler for precedent, so what are those? I would hope she would recuse herself from a decision on 2020 election if it ends up there. On the abortion issue, I think she would consider the fetus as human life, but she respects precedent. I just finished reading Memoirs of Justice Sonomayor, she’s puts her Catholic background in perspective & is far from conservative. I think in the company of other more tempered colleges she might become more liberal? That being said, ramming a judge through at this time is a negative. If Biden wins we’ll figure it out.
I’ve never been an fan of the notion of “originalism.” In addition to Jefferson’s 1816 quote cited by the professor in her blog, I’ll throw into the ‘soup’ one of my favorite quotes of Ralph Waldo Emerson (1803-1882) from his famous Self-Reliance essay.
“A foolish consistency is the hobgoblin of little minds, adored by little statesmen, and philosophers and divines. With consistency a great soul has simply nothing to do. He may as well concern himself with his shadow on the wall. Speak what you think now in hard words and to-morrow speak what to-morrow thinks in hard words again, though it contradicts every thing you said to-day.”
Kathy; it is just my opinion but, I believe the “conservatives” on SCOTUS have all been waiting for Ruth Bader Ginsburg to die to open the way to end Roe cs. Wade, the ACA and further constrict voting and civil rights to fit their definition of “justice” and “democracy”. Trump first had to pave the way with Gorsuch and KavaNaugh; RBG was too strong in her stand for them to win against her, that third seat is the winner for the Republican party to wrest full control of SCOTUS. My guess is he deliberately waited to replace her with another woman to gain women’s votes as well as stack the court. He has saved her name on that Federalist Society list until now; nominating her instead of Gorsuch or KavaNaugh earlier would not give her placement the power she will add to SCOTUS as RBG’s replacement.
Still haunted by Scalia! Damn it!
And who appointed Scalia? That champion of “Trickle Down Horse Pooh!” Reagan.
JoAnn, I appreciate your perspectives & am also concerned about the courts refusing to take a democratic stand on issues that effect us all i.e. Citizens United. I understand that majority rules in Supreme court decisions, but don’t know first hand that all decisions are liberal/conservative issues? I know Justice Kennedy use to be swing vote, now it seems to be Roberts. Ginsberg was a champion for women’s rights, and putting a woman who would work to reverse her breakthroughs would be a travesty. The majority of Americans think that the abortion law should stand, including Catholics. Even though they wouldn’t want to personally have one, they realize that others don’t have those beliefs. I’m aware that fundamentalists believe that everyone should have same beliefs, but that’s a evangelical, conversion mode. In this country we have the freedom not to believe it! Sexism is a huge issue in this country, and probably originated in the Church? Would a woman coming out of that system be well enough aware of those factors & be objective? I think we will see.
I have long thought originalism was a cover for flaunting the doctrine of stare decisis, a much longer and better accepted doctrine that brings continuity to decision making. No doctrine, of course, is immune to time and circumstance. Take the infamous Dred Scott decision, for instance, which hardly bears repetition under the rubric of either originalism or stare decisis or any other doctrine, and except for the optics involved, I don’t care if we have nine atheists, Baptists or Methodists on the court so long as they can somehow divorce their spiritual views (if any) from their duty to adjudge from the facts and the law free of any such views and any other influence on their duty to make honest findings and holdings (perhaps a tall order).
Perfect justice doled out by imperfect human beings is more of a concept to be strived for rather than a reality we can embrace, and even perfect justice is subject to time and circumstance as we move along, but let’s keep striving.
Originalsim – balderdash
“I am the sole arbiter of truth and right.
The government closest to the people is best, unless it is run by Democrats, in which case, the State government should overrule them. In all circumstances, anything decided by Democrats is illegitimate.
Any court decision I disagree with is ‘judicial activism’; when I agree, it is ‘originalism’.
Amy Coney Barrett knows what women want, as Clarence Thomas understands people of color.
Nobody can challenge that.
My spirit infuses Mitch McConnell, the Federalist Society, and all like-minded people.
I am culmination of decades of drifting towards culture wars and authoritarianism.
I am the sole arbiter of truth and right.
I am your new ‘true American’ master.”
Originalsim – balderdash
To expand on Bob’s comment
I’m not an attorney, nor do I play one on TV, but ‘a well regulated Militia’ clearly referred to a state controlled army in the Articles of Confederation, and I don’t believe that any other Amendment had ‘explanatory words” taking up half of the text, but a 5-4 decision changed the reading of that, overturning two centuries of precedent.
Original intent – flint locks
Originalsim – balderdash
Thank you for bringing this up, Sheila.
I totally agree with your assessment of Scalia. He coined the term “originalist’ and somehow made it stick with media and other scholars when they explained his decisions. But he was nothing of the kind (I’ve read many of his writings.) He was, what I call, a “slippery-slope conservative.” His rationale, time and again, was that, if we allow a certain freedom to exist, it would create a “slippery-slope,” where there would be deluge of other “inappropriate” freedoms that would cause societal chaos, so it was best to restrict freedoms whenever possible and as much as possible. .His self-defined “originalism” was one of the big cons in court history.
JoAnn Green: Betty has to be right about something.
But I will give her credit for actually reading something she might disagree with. It is much more than many people will do.
Maybe someday, once Trump is gone and hopefully the Republican Party is given a sound whipping, the politics of grievance will be moderated and the anger will subside and some reason will return. Then we might have a reasonable discussion with people that might disagree.
Just now seeing this.
People are quick to point out problems with originalism which problems, although exaggerated, are no doubt true. But my issue is that they never offer in its place any coherent theory of jurisprudence. They instead are perfectly fine with judges, by judicial fiat, adopting whatever policies they think is best…as long as they are liberal policies.
But what happens when conservative judges abandon originalism and judicial restraint to adopt conservative policy positions? That’s already starting to happen. A good example is the Citizens United case when a conservative court, based on flimsy reasoning, overturned the will of Congress. There may be a day not too far down the road when liberals regret that conservative judges finally listened to them and dismissed originalism as a way of limiting judicial power.