More Stuntz

There he goes again. William Stuntz, the Harvard law professor who has recently published a couple of unusually provocative essays (discussed here) has just published another one, this one taking conservative judges to task for adhering to mistaken theories of originalism, federalism, and formalism that render their opinions, in Stuntz’s view, unconservative. [Hat Tip to InstaPundit]

Read, as they say, the whole thing — first, because it’s worth it; and second, because my responses here will be narrow and limited. Briefly, I respectfully disagree.

Take originalism (O.K., I’ll take it, or at least a version of it.)

Dangerous as constitutional federalism is, originalism — the idea that constitutional language should be read the way James Madison and his friends would have read it — is worse. Begin with a proposition that originalists usually ignore: No one really knows what Madison would think about, say, the constitutionality of federal environmental laws. Madison had a vision of what “commerce among the several states” might mean, but his vision did not extend centuries into the future. (Those among us who believe in divinely inspired texts should not confuse Madison with Moses.) Racial profiling, Roe v. Wade, and gay rights were, to put it mildly, not part of his legal imagination. Figuring out how he would apply eighteenth-century texts to those questions is not just hard. It’s impossible.

But this is so unfair (and thus un-Stuntzian) as to be a caricature of originalism, not a description. No decent originalists play the if-Madison-were-alive-today game. What matters to them is what he said (not thought) then, not what he would say today. In this regard, please allow me (but then, who are you to say no?) to quote myself at some length on this point:

In a recent post discussing some of the fallout from Martin Luther King