In a comment in a thread over at McArdle’s blog on the impact of the recent Supreme Court decision on political spending by corporations and political advocacy groups, themightypuck discusses the demise of original intent:
themightypuck: And, while I agree that the decision is probably the correct one, it is a bit of a high wire act for an originalist to come to said conclusion.
Alsadius: How so? “Congress shall make no law…” seems pretty much what the original intent was, given that that’s how it’s written.
themightypuck: The entire text:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
I’m quite happy that centuries of jurisprudence have defined speech to mean more than speech and I only mention it here as evidence of what I see as the failure of originalism.
The issue with this statement is that the founders clearly meant speech to include the printed word, and you can argue that television advertising is the modern equivalent of the printed word. Not being a student of the law, I can’t tell you how the original intent doctrine deals with technological development.
The outrage is that this decision, which overrules a law put into place by the people’s elected representatives as well as two past Supreme Court precedents, was handed down by a group of justices (and celebrated by a group of activists) who all claim to be against judicial activism.