Non-originalist opinions

[Mitch Berman]

Frank,
I don't know that I'm asking for all that much.  I'd rather just say,
for reasons you and Steve Griffin give, and with which I agree, that the
failure to find what I'm looking for wouldn't warrant the sorts of
inference that an originalist is likely to draw.  No?

Mitch

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
crossf at mail.utexas.edu
Sent: Monday, April 20, 2009 9:41 PM
To: conlawprof at lists.ucla.edu
Subject: Re: Non-originalist opinions

Mitch, I think you're asking for a bit much, for reasons that Steve  
gave.  I have an ongoing research project that takes a different  
approach, examining the use of originalist materials in opinions.  If  
the Court doesn't bother to refer to original intent in its opinion,  
it would seem fair to call that a non-originalist opinion, no?  It  
might or might not be contrary to originalism.  But the lack of  
citations would suggest a Court that doesn't much care about that.
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