Nuances of constitutional originalism leave originalism behind

https://www.ncronline.org/news/opinion/distinctly-catholic/nuances-constitutional-originalism-leave-originalism-behindMGB: On Wenesday, I pointed out that the Origionalism of Kavanaugh and Scalia has changed, although we are not telling the right winger's that, lest they withdraw the nomination.  Originalism is what the members of the Court say it is, not what Catholic philosophers want it to be. Now that my summer vacation is complete, I can quote Corey Robin's book, The Reactionary Mind regardomg Scalia and this concept, which is addressed in Chapter 10, Affirmative Action Baby (referring to Scalia).  Robin says that

in Scalia's view, it is not intentions tjat goverm is. ot os tje Constitution, the text as it was written and rewritten through amendment.,,,How are we to understand a Constituton that evolves? By looking at the polls, the philosophy of John Rawls, the teachings of the Catholic Church?  If the Constitution is always changing, what constraints can we impose on what counts as an acceptable interpretation? None, Scalia says. When 'every day' is 'a new day' in th elaw, it ceases to be law.

That pretty much destroys any link between originalism and Catholic moral theology.  Indeed.  Pope Gregory XVI denounced democracy, although he cared more about Italy and his own rights than the United States.  Americanism still scared the papacy, although the word had a different meaning from its current patriotic use, referring instead to a way of interpreting doctrine in a way consistent with American civil values among the American bishops.  The bishops assured Rome that this was not the case, however Vatican II adopted what would have been understood as the Americanist heresy when it canonized most of Fr. Murray's understanding of free thought in promulgating Dignitas Humanae.  The American ideals of freedom have overcome the Church's commitment to anachronism much more than the other way around.

The problem the reactionaries have is that they have no program to advance society and they hate any such advancement. They can elect vocal minorities to power in more than half the states but not always among have the citizenry. If this was just a debate on values, this would not be a problem. It is more than that, it is a battle of individual rights versus the establishment and that those aggrieved need not wait for the turn of the legislative tide. They can demand justice for themselves based on the promises of the Constitution rather than the will of the supposed majority.

The ACLU does not have some program to corrupt the nation, rather it represents those whose rights are abused, as does the Southern Poverty Law Center. Originalism is a demand to ignore the rights of the aggrieved by hiding behind constitutional purity.  So far, most conservative judges have ignored partisanship and have found for individual rights. Kavanugh is likely in that camp, although Gorsuch may not be. The law as taught at Ave Maria and Liberty will never be the law of the land.

Robin points out that, instead of philosophy, even modern Jurists look to the history of statutes and constitutional provisions. He quotes Tribe's paraphrase of Dwarkin with the comment "We are all originalists now." Scalia has a part in that change, but I suspect he did not like the result, as Gorscuh and Kavanaugh likely agree with five of the other justices that the history of the 14th Amendment jurisprudence demands that Roe, et al be considered settled law.