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There is not a soul in America in 1791 who would have thought that’s how you do Constitutional law, not a soul, not one. No exceptions to this rule. They all thought the same thing: Constitutional rights, which really came be- fore the Constitution anyway, to most of them, were de- fensible when public policy was strong enough. Always. It was always a balancing and that’s what the Supreme Court did from 1791 to about, I don’t know, last year.
They balanced in the First Amendment, they balanced in criminal cases, they balanced here, they balanced there, they balanced everywhere.
had life tenure and you had unreviewable power, that’s exactly what you would do and that’s exactly what I would do and that’s exactly what Mike would do.
Class dismissed.
William P. Keane San Francisco, CA
to repeat that: The most strongly self-identified Originalist we have today wrote the most anti-Originalist opinion in Amer- ican history.
In Bruen, Justice Thomas wrote that if a judge is faced with a gun regulation or a gun law, that judge is not allowed to weigh the community’s interest in public safety against gun rights. The only thing a judge is allowed to do under the Bruen case, and this is causing lower court judges to literally rebel, is to see if there was a similar law in 1791 or maybe a similar law in 1868, and that’s it; that’s it. Community interest is not allowed to be considered.
half-timer Originalist and Justice Roberts has never said he was an Originalist – signed on to an opinion that not a single Founding Father would have recognized. And that’s the prob- lem right there. We have no way of faithfully applying impre- cise text with contested history to an ever-changing society.
The last thing I want to say in this section is this. There is a big difference between Constitutional law and Constitutional litigation. This is a distinction I think I’m the first person to make; you’re going to be hearing it a lot in the near future. The president has to be thirty-five; that’s Constitutional law. Wyoming gets the same number of senators as California; that’s Constitutional law. Constitutional litigation is all about the application of imprecise text with contested histories to changing facts. We know that the Founding Fathers didn’t think women had equal rights. The Constitutional text hasn’t changed, but 98 percent of Originalists today say women have equal rights. How did they get there? Because Original- ism is not what’s doing the work. What’s doing the work is the substantive vision of the good and the bad. And if you
So in Bruen, four and a half Originalist justices – that would be Kavanaugh, Thomas, Gorsuch and Barrett; Alito is a
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