The Rhetoric of Judicial Opinions

My previous post on Arguments from the Future touches on an extremely important issue — the Rhetoric of Judicial Opinions.  Originalism has an extremely powerful rhetorical appeal.  Most people regard the original meaning of the Constitution as the real Constitution.  Therefore, when someone seeks to depart from that, they are at a disadvantage.

There are a variety of moves that nonoriginalists have used to deflect this attack.  One is to bring up something of a red herring.  They interpret originalism as reflecting merely the expected applications of the framers — the specific applications of the constitutional clauses that the framers expected to occur — and then argue that those expected applications are not the Constitution.

But obviously this deflection is insufficient.  It does nothing to address the more plausible types of originalism, such as original public meaning, that go beyond the expected applications.

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