Monday, April 3, 2017

Touchy originalists!

Mary Bilder (Boston College) wrote an opinion piece for the Boston Globe about originalism and Judge Gorsuch.  This elicited the following astonishing reply from originalist Larry Solum (Georgetown) on his usually benign and informative Legal Theory Blog.  Some of the questions might have made sense were Solum the referee for a scholarly article making some of these claims; as a response to an op-ed, they are almost comical overreactions.  Take just Solum's first intervention:

Question One: You wrote the following:

Today, most originalists contend that a judge should abide by the text’s “original public meaning” — a term of art that originalist scholars have written thousands of pages trying to explain.

What is the basis for the page count?  Which articles by which originalists scholars are you discussing?  I am very familiar with the theoretical literature on original public meaning, but if this claim is correct there is a large body of work that I have missed entirely.

The basis for the "page count"?  Seriously?  One can look just at Solum's own SSRN page to find at least 400 pages of writing on this topic.  And that's just one author.  Add in Randy Barnett, Keith Whittington, the late Justice Scalia, John McGinnis, Michael Rappaport, Larry Alexander, Will Baude, and Stephen Sachs, and "thousands" seems like a plausible off-the-cuff estimate.  But why quibble about nonsense like this?

I would advise Prof. Bilder to let these questions pass in silence.

UPDATE:  Prof. Solum replies here; I will give him the final word on this matter!

http://leiterlawschool.typepad.com/leiter/2017/04/touchy-originalists.html

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