OA49: Why Originalists Don’t Belong on the Supreme Court

In today’s episode, we take a long look at the judicial philosophy of “originalism” made popular by former Supreme Court Justice Antonin Scalia and advocated by his would-be replacement.

First, we begin with a question from Jodi, who asks Andrew for his opinion of LegalZoom and other law-in-a-box services.  Andrew gets a little emotional in his response….

Next, we break down originalism as a form of jurisprudence and examine why it is (1) internally incoherent and contradictory; (2) dangerous and unconstrained; and (3) contrary to the fundamental purpose of the judiciary.  Andrew’s argument is that originalists do not belong on the Supreme Court.  Period.

Finally, we end with the answer to Thomas Takes the Bar Exam question #13 about hearsay.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday’s show.  Don’t forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)!

Recent Appearances:

Andrew was a panel guest on The Thinking Atheist episode “Donald Trump’s America,” which you can listen to by clicking right here.

Show Notes & Links

  1. Here are Andrew’s two blog posts — one about Legal Zoom and one about downloading contracts off the internet.  His law firm site is here.
  2. This Huffington Post piece quotes Scalia’s 2008 interview with Nina Totenberg about the Eighth Amendment not prohibiting 18th-century forms of torture.
  3. Here’s a link to the full text of the Federalist Papers.
  4. Marbury v. Madison, 5 U.S. 137 (1803).
  5. United States v. Carolene Products, 304 U.S. 144 (1938).
  6. Scalia’s dissent in Atkins v. Virginia, 536 U.S. 304, 347-48 (2002) and opinion in Printz v. United States, 521 U.S. 898 (1997) are where he makes fun of citations to international law.
  7. Harmelin v. Michigan, 501 U.S. 957 (1991) is the infamous decision in which Scalia declared that the Eighth Amendment only bars punishments that are both “cruel” and “unusual in the Constitutional sense.”

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