Non-originalist opinions

[Mitch Berman]

Yes, including the qualifier.

Thanks.

-----Original Message-----
From: Bob Sheridan [mailto:rs at robertsheridan.com] 
Sent: Monday, April 20, 2009 2:53 PM
To: Mitch Berman
Cc: CONLAWPROF at lists.ucla.edu
Subject: Re: Non-originalist opinions

It's a good, thought-provoking question, presumably including the 
qualifier, "w/o an intervening amendment" such as the Civil War 
Amendments. My thoughts have run from Barron v. Baltimore to the 
incorporation cases, to Swift v. Tysen, one of the Revolution of 1937 
cases, so-called, in which the idea of an independent federal common law

went out of existence despite Justice Story having thought otherwise. I 
wonder about the Search cases, given that the Framers had no idea of the

technological advances to come. And what about any civil rights case 
where the Framers would have agreed that the social/political mores of 
the day allowed one thing while today the same bad ideas are highly 
frowned upon in more modern times. Lawrence v. Texas might work on two 
counts, what DP meant to the Framers and what EP meant to the drafters 
of Amend. 14.

rs
sfls

Mitch Berman wrote:
>
> 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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