Document Type
Article
Publication Date
Fall 2023
ISSN
0008-8390
Publisher
Catholic University of America, Columbus School of Law
Language
en-US
Abstract
The central claim of this essay is that in interpreting the U.S. Constitution, it is immoral to choose original intent over social welfare, broadly conceived. Once this argument is laid out and defended on its own terms, I support the central claim with a variety of arguments, including the defective process pursuant to which the Constitution was enacted, the deeply flawed substantive content of the Constitution, the incongruity of fidelity to the views of a generation of revolutionaries, the current virtual imperviousness of the Constitution to amendment, the failure of the Constitution to resolve fundamental questions concerning the allocation of power within the government, which leads to dependence on the un-democratic Supreme Court to resolve important and controversial social issues and finally originalism’s tendency to force otherwise honorable people to lie or obfuscate about the reasons for their official decisions.
Recommended Citation
Jack M. Beermann,
The Immorality of Originalism
,
in
72
Catholic University Law Review
445
(2023).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/3192
Comments
Updated with published article on 9/7/2024
Draft available as additional file