Free Republic

In today’s Washington Post, Stuart Taylor, Jr. argues that originalism is no safeguard against “subjective judicial policymaking.” It is not clear whether he thinks originalism is no better at avoiding subjectivity than alternative modes of jurisprudence–and come to think of it, I’m not even sure whether Taylor regards subjectivity as a problem exactly. But in any event, I think his case is remarkably weak when he elaborates his four reasons not to put much stock in originalism. “First,” he writes, “there has never been a consensus on the original meaning” of some of the clauses of the Constitution, and the...