inflamed passion and interest in politics faction, threats to rights (especially property – rights), etc.). But the entire Reagan administration push for (Old/Reactive) Originalism, as noted in passing above, was itself anti-Foundationalist and positivist, since it simply took the old, early twentieth century progressive theories of judicial review and judicial role in a democracy and hurled them at later Warren Court liberals, charging hypocrisy (the charge against the Warren Court of activism” were a recycling of the “judicial Progressive theories hurled earlier at the Court”). If liberal “Lochner is a profound threat to American freedom and the American way of life, in ways that amount to a betrayal of all we value as a country, then the conviction must apply equally to the constitutional theories of Robert Bork, Edwin Meese, Antonin Scalia, and Ronald Reagan. This paper is aimed at what I see as the irrelevance of much of constitutional theory that is currently being advanced on the progressive/liberal side, leaving the field, in law, probably, but certainly in constitutional politics, to the Right making – the only game in town, even amongst liberals. A large part of the problem “Originalism” as I see it is that liberals have not be listening to conservatives. They are still focused on the Old/Reactive originalism that predominated a generation ago. The charge they lodge is hypocrisy: say you believe in judicial restraint but you are the judicial ‘you – activists! (Lopez, Morrison, Heller, McDonald, Snyder v. Phelps, Hobby-Lobby, Citizens dissents, etc. the whole new conservative rights revolution)). But United, Kelo – is not the same today as it once was, simply because it is using the same “originalism” name. The originalism at the heart of the contemporary Right is new wine in an old bottle.
inflamed passion and interest in politics – faction, threats to rights (especially property rights), etc.). But the entire Reagan administration push for (Old/Reactive) Originalism, as noted in passing above, was itself anti-Foundationalist and positivist, since it simply took the old, early twentieth century progressive theories of judicial review and judicial role in a democracy and hurled them at later Warren Court liberals, charging hypocrisy (the charge against the Warren Court of “judicial activism” were a recycling of the Progressive theories hurled earlier at the “Lochner Court”). If liberal is a profound threat to American freedom and the American way of life, in ways that amount to a betrayal of all we value as a country, then the conviction must apply equally to the constitutional theories of Robert Bork, Edwin Meese, Antonin Scalia, and Ronald Reagan. This paper is aimed at what I see as the irrelevance of much of constitutional theory that is currently being advanced on the progressive/liberal side, leaving the field, in law, probably, but certainly in constitutional politics, to the Right – making “Originalism” the only game in town, even amongst liberals. A large part of the problem as I see it is that liberals have not be listening to conservatives. They are still focused on the Old/Reactive originalism that predominated a generation ago. The charge they lodge is hypocrisy: ‘you say you believe in judicial restraint – but you are the judicial activists! (Lopez, Morrison, Heller, McDonald, Snyder v. Phelps, Hobby-Lobby, Citizens United, Kelo dissents, etc. – the whole new conservative rights revolution)). But “originalism” is not the same today as it once was, simply because it is using the same name. The originalism at the heart of the contemporary Right is new wine in an old bottle.
WPSASanDiegoKerschpaper022516.docx