Dahlia Lithwick has a great column on David Souter's epic takedown of originalism as a judicial philosophy:
Souter took pains to reject the idea that the plain meaning of the Constitution is always clear, lurking there "in the Constitution, waiting for a judge to read it fairly." We can all agree that much of the Constitution is not at all clear. (What does "cruel and unusual" mean?) But Souter went on to show that certain provisions of the document are in tension with others. "The Constitution is no simple contract," he explained, "not because it uses a certain amount of open-ended language, but because its language grants and guarantees many good things, and good things that compete with each other and can never all be realized, altogether, all at once."
I've been writing for the past couple of weeks about conservative hostility toward the Fourteenth Amendment, from the thin Ouija Board Originalism used to deny its plain meaning, to the history behind ending the practice of granting citizenship based on race, to the sudden conservative admiration for foreign precedent. But I want to talk specifically about a recent case specifically dealing with "cruel and unusual punishment." It was only a few weeks ago that conservatives were savaging Justice Anthony Kennedy for pointing out in his ruling outlawing juvenile life without parole that the U.S. is only one of two countries that maintain the practice.
The funny part here is that unlike the Fourteenth Amendment, the Eighth Amendment specifically requires a subjective judgment: A finding of what "cruel and unusual" means in the context of "punishment." If only two countries in the entire world maintain a particular kind of punishment, it follows that said punishment might be cruel and unusual. Kennedy was clear that he wasn't citing foreign law as legal precedent, but that he looked abroad to make what fundamentally has to be a subjective determination. By contrast, the 14th Amendment asks for no such determination--but that hasn't stopped conservatives from hoping the conservative majority on the court might find one.
Lithwick notes that the theory of orginalism assumes a "nonexistent universe in which all cases are easy and all the constitutional directives are perfectly clear." But to the originalists, it is always perfectly clear: The answer is whatever they want it to be, all other conclusions are inherently illegitimate. That's what makes originalism such a great hustle -- its arbitraryness is masked by nigh-bulletproof rhetorical argument -- that its adherents are simply "applying the law as written." In order to attack their reasoning, you first have to dismantle the idea that there are no inherent tensions within the Constitution that need to be resolved in order to reach a clear ruling. In a way, originalists are a bit like religious fundamentalists who insist on following their religious texts literally but in practice only select those that fit their prevailing cultural sympathies, dismissing others as heretics and unbelievers.
-- A. Serwer
