WRT BC's linking of environmental justice to the rights of the unborn, the opposite legal flourish would be to invoke Castle Doctrine as a defense for an abortion in a state with restrictive abortion laws, but liberal firearms laws.
2025-09-20 05:50:24
Interesting article. The narrative of how the Supreme Court came to be so weaponized is good, and the role that Originalism played in it is plausible. I'd like a much more solid set of grounds laid out for that, but that would likely push the length of the article beyond what a popular venue like The Atlantic would support - more of an academic press book argument than a middlebrow magazine argument.
The part I found weakest, though, was the connection implied between Originalism and the abandonment of constitutional amendment as a path to change. It seems to me that the procedures for amendment codified in the Constitution themselves account for why that process has been abandoned. The threshold of support required for amending the Constitution is excessive.
The only times it has ever worked, it did so because of either war or an extension of franchise to a broader group of Americans that created the potential for new cross-cutting alliances which could overcome those difficulties. I don't see that Originalism has altered anything with regard to amendment. What it has done is given conservative legal activists a recognizable brand on which to build a legal sophistry that can provide cover for a judiciary coup.
The Constitution is deeply flawed and limiting. It probably should have failed in 1860 or in 1929, and only extraordinary extra-Constitutional means preserved the nation in both instances, but the flaws remain. We would probably be better off with a new governing document, but there is no way that the nation would ever go back together as a 50-state union if the document went away. We've lost our sense of a common good.
WRT BC's linking of environmental justice to the rights of the unborn, the opposite legal flourish would be to invoke Castle Doctrine as a defense for an abortion in a state with restrictive abortion laws, but liberal firearms laws.
Interesting article. The narrative of how the Supreme Court came to be so weaponized is good, and the role that Originalism played in it is plausible. I'd like a much more solid set of grounds laid out for that, but that would likely push the length of the article beyond what a popular venue like The Atlantic would support - more of an academic press book argument than a middlebrow magazine argument.
The part I found weakest, though, was the connection implied between Originalism and the abandonment of constitutional amendment as a path to change. It seems to me that the procedures for amendment codified in the Constitution themselves account for why that process has been abandoned. The threshold of support required for amending the Constitution is excessive.
https://www.californialawreview.org/print/the-worlds-most-difficult-constitution-to-amend
The only times it has ever worked, it did so because of either war or an extension of franchise to a broader group of Americans that created the potential for new cross-cutting alliances which could overcome those difficulties. I don't see that Originalism has altered anything with regard to amendment. What it has done is given conservative legal activists a recognizable brand on which to build a legal sophistry that can provide cover for a judiciary coup.
The Constitution is deeply flawed and limiting. It probably should have failed in 1860 or in 1929, and only extraordinary extra-Constitutional means preserved the nation in both instances, but the flaws remain. We would probably be better off with a new governing document, but there is no way that the nation would ever go back together as a 50-state union if the document went away. We've lost our sense of a common good.