In a second response to the ongoing debate over originalism and the common good in The American Mind, James Wilson Institute affiliated attorney Gunnar Gundersen addresses the flurry of criticism he received on Twitter after he declared that “originalism has failed.” Responding to the defenders of originalism he calls the “originalist inquisition,” Gundersen expands his criticism of originalism. In his view, originalism is ultimately a mask for legal positivism, treating the law laid down by the Founders as worthy of fidelity merely because it is, not because it is good. Once the mask is removed, originalism is lost in the myriad of theories of interpretation and application. Ultimately, Gundersen sees originalism as an abdication of moral responsibility on the part of legal conservatives. Blind fidelity to text rather than adherence to objective moral principles rooted in natural law is what gave rise to Dred Scott, according to Gundersen.
Some quotes from the article:
“[O]rthodoxy demands we accept Originalism in some form, apparently. And so the inquisitorial agents are out in full force to question the heretics. This is because Originalism has become the shorthand way to say you are a real conservative.”
“Originalism, by its own terms and according to its most vocal advocates, screens out and prohibits an examination of whether the founding was good or just—rather, it just is.”
“By refusing to provide a reason why it is good to follow the original meaning of the Constitution, conservatives are failing to explain the moral basis for the American republic. This approach to interpreting the Constitution is closer to that of H.L.A Hart than that of James Wilson. Thus, ironically, Originalism has more in common with modern theories of law than the furnishings of mind found among the founding generation.”
“Rather than provide a meaningful jurisprudence to the courts that reaffirms the legitimacy of the American republic, Originalism functions like a simulacrum. Originalism looks like jurisprudence, but it hides the horrible truth: jurisprudence is dead. Judicial realism is the regnant order of our era.”
Read the full article here.