Monday, September 03, 2007

The New Originalism at APSA


Several of the members of this blog have just returned from the American Political Science Association Convention in Chicago, which is held over Labor Day weekend. Sandy Levinson and I were on a panel on the New Originalism, along with Sot Barber, Keith Whittington, Randy Barnett and Jim Fleming. Larry Solum has a blow by blow account here.


By all odds, the Civil War should have put an end to originalism. The Civil War clearly illustrated the fallibility of the Framers -- they failed to write the Constitution in such a way as would have prevented it. Maybe the Civil War should be called "The War Between the Originalists." Arguably, originalism caused the war.

One of the worst examples of originalism was when Judge John E. Jones III showed great hostility towards the defendants in the Kitzmiller v. Dover decision by saying in a Dickinson College commencement speech that his decision was influenced by his notion that the Founders believed that organized religions are not "true" religions. He said,

. . .we see the Founders' ideals quite clearly, among many places, in the Establishment Clause within the First Amendment to the United States Constitution. This of course was the clause that I determined the school board had violated in the Kitzmiller v. Dover case. While legal scholars will continue to debate the appropriate application of that clause to particular facts in individual cases, this much is very clear. The Founders believed that "true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry."* At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things," to secure their idea of religious freedom by barring any alliance between church and state."*

BTW, what happened to Part 3 of the Fairness Doctrine? I have been looking forward to commenting on that.

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