Law 101

How do we understand the law? According to the mind of the legislator, and in the case of the Constitution, according to the mind of the states who ratified it.

Chronicles: Faux Originalism by Mark Pulliam

In response to the activism of the Warren Court (and the marginally better record of the subsequent Burger Court), conservatives in the 1970s, led by Robert Bork, advocated a jurisprudence of “original intent”—hewing to the original meaning of the Constitution, based on its text and history. Following decades of heedless activism, this was a bold position. In a 1982 article in National Review, Bork famously stated that “The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else.” Like the boy who pointed out that the emperor was naked, Bork’s critique was devastating.

Famed jurist Antonin Scalia and others tweaked “original intent”—which focused on the subjective intentions of individual Framers—into a more general inquiry into the original public meaning of the constitutional provisions when they were enacted and ratified. How were the words understood at the time they were adopted? This is the central doctrinal question of constitutional originalism.

Will Vermeule eventually concede this? Or will he stick to his error of judging "originalism" to be a form of "legal positivism"?