Original Intent Was Often Wrong

Does the writer–a law professor–want the courts to be in charge of administrative departments within the government’s executive branch? Her arguments for “separation” of powers sound more like an agenda for increasing the powers of the courts, esp. in areas of regulation. When individual justices have been correct (as Judge Thomas was about the rights of states to permit citizens the production of marijuana for medicinal use), correct rulings should not be used to expand the courts’ powers.

The courts consider hundreds of cases besides the few cited. Looking forward, civil liberties are a growing legal territory that the courts need to move beyond “original intent”–once used to argue the defense of segregated schools (esp. by noted journalist Jack Kilpatrick, who wrote reams saying schools were not mentioned in the constitution and neither was segregation; society had a right to impose order as it saw fit (similar to the administration’s view on immigration in which the idea of security is used to defeat the freedom it is supposed to protect!).

Outside of the narrow scope here, original intent is a frame that becomes a stranglehold on freedom and liberty (abortion, lgbt marriage, police reform, political money) and opportunity (educational reform, employment bias, voting rights, freedom of movement, healthcare).

Firm and correct at times, original intent shrinks the constitution and concentrates power at the expense of freedom as the nation expands.

The Court Needs Another Clarence Thomas, Not a Scalia https://nyti.ms/2jQU1fv



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