by ButterflyEffect

SCALIA’S ORIGINALISM was a form of self-abnegation consistent with the ritual self-abnegations of Catholic history. It says to the interpreter, don’t be led into temptation, but it acknowledges how tempting those temptations can be. (Not for nothing did Robert H. Bork, the first originalist martyr — and later a convert to Catholicism — title his book The Tempting of America: The Political Seduction of the Law.) Who wouldn’t want to carve up the Bible and ignore the hard parts? Who wouldn’t want to extrapolate a general right to privacy from the rights specifically mentioned in the Constitution? (In Griswold v. Connecticut [1965], Justice William O. Douglas found that general right in the Constitution’s “penumbras” and “emanations” — the kind of vocabulary, and decision, that originalists despise.) Who wouldn’t want to believe that the Constitution lives, that its meaning evolves as our own sensibilities and technologies evolve, that the old We the People who wrote and ratified the Constitution includes the modern We the People, too? Alas, the living Constitution is a false miracle: “The Constitution that I interpret and apply,” Scalia wrote in 2002, “is not living but dead — or, as I prefer to put it, enduring.” Originalism kills the Constitution so that the Constitution can endure, so that the Constitution won’t betray itself.