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Judicial originalism as myth
“It is simply anti-democratic to conceal something as fundamental as the nature of constitutional decision-making — especially if concealment is motivated by the fear that the citizenry wouldn’t stand for the practice if it knew the truth. If the Court can’t admit what it is doing, then it shouldn’t do it.” —Paul Brest, 1981
The doctrine of originalism, whereby judges purport to identify and then rely on the original meaning of the United States Constitution to resolve constitutional cases, is more ingrained in our national consciousness today than at…