In other words, when the equal-protection clause was enacted, what were the words understood to mean? Were they understood to sweep away, say, restrictions on women in combat? Were they understood to mean that legislatures couldn’t enact laws that prohibit certain sexual practices? Drafters create a text, and that text has an original, understood meaning. That, in a nutshell is what “originalism” means.
.. The lesson from the legal Left — a lesson I was very clearly taught by multiple professors in law school — is that when a case is of sufficiently critical social importance, standard rules of legal interpretation give way to the greater demands of social justice. Here’s how one judge put it to me in his chambers: “You should always know the law, and you should always know what’s right. Do what’s right.” This would be an appealing notion if judges possessed godlike powers of judgment, but they don’t; they’re flawed like every other human. So it’s an appalling abuse of power.
.. To smear Neil Gorsuch, the Left has created and attacked a straw man.
As the 2016 presidential election made clear, we live in the era of the echo chamber. To escape their own, progressives need to be reading the best conservative thought — certainly Friedrich Hayek and Milton Friedman, but also more contemporary figures such as Antonin Scalia and Robert Ellickson. The same is true for conservatives, if they hope to learn from progressives. Here are five books with which they might start.
.. Many conservatives insist that judges should adhere to the “original meaning” of the Constitution. Dworkin offers the most systematic response to this view. He emphasizes that the Constitution contains a lot of open-ended phrases, containing abstract moral language: “equal protection,” “freedom of speech,” “due process of law.”
.. He contends that whatever judges say, all of them end up as “moral readers” of such phrases — and so their own convictions must play a significant role. The question, then, is what kind of moral reading we will give, not whether we will give one.
.. After reading these books, conservatives are hardly likely to rush out and volunteer to work for the Democratic Party. But they will end up a lot more humble.