Tuesday, December 06, 2011

There's an ongoing discussion of Originalism at Balkinization, centering on JB's new book. The discussion itself is silly; Balkin's arguments are brilliant only in the context of that silliness. My comment on one of the threads
Let me explain it to you kids.
The problem was never originalism it was fundamentalism.

Wise old man Jack Balkin is playing Erasmus, subverting his opponents' argument by undermining its claims to exactitude. In admitting defeat, his old argument wins: we're all originalists now, debating the living meaning of originalism. The reactionaries' argument is no longer reactionary.

To paraphrase Nino: "The English language as I interpret it is a dead language." He's an idiot. A reactionary peasant. The Constitution is living because language is living. That terrifies him. It's anarchy! No, it's just sloppy. Life is sloppy.

But that fight matters less than it used to, since the real questions have left the courts and gone back to electoral politics. The age of the juridical vanguard is over; that's why some who are addicted to the old process are now questioning judicial review.

They miss the point

We have a reactionary court, so street [I should have written "electoral"] politics is back to center stage. Don't mourn, organize. It will all switch back in 50 years and strategies will change again.
Determinism, Culture, Philosophy, Politics,

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