Non-originalist opinions

[Griffin, Stephen M]

This is similar to something Keith Whittington said in his book on
originalism.  I thought then the question doesn't get to the point
because wouldn't this be against the conventions of judicial opinion
writing?  Consider a generalization of the question - how many decisions
of the Court acknowledge there are powerful arguments against the
holding but then shrug and decide the case with an "oh well, we don't
buy those arguments, case decided?"  Doesn't strike me as very
realistic.  Judicial opinions are constructed to persuade and do not
necessarily concern themselves with refuting all arguments against the
holding.

 

What we should look for are opinions where the circumstances show that
the Court knows there is substantial evidence of original meaning
against the holding.  Then you have some candidates - probably
Blaisdell, Adamson (especially Frankfurter's reaction to Black's
dissent), and, of course, Brown.

 

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mitch Berman
Sent: Monday, April 20, 2009 2:22 PM
To: CONLAWPROF at lists.ucla.edu
Subject: Non-originalist opinions

 

Larry Alexander has asked me to ask this question of y'all:

 

Can anyone point us to Supreme Court opinions that acknowledge that the
original meaning (authorially intended, public meaning, etc.) of some
provision or clause was in fact X, or very probably was X, and yet end
up endorsing some competing interpretation, Y?

 

Thanks in advance.

 

Mitch Berman

The University of Texas at Austin

 

 

 

 

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