In “Supreme Imbalance: Why Originalism and Conservative Activism Are Wrong,” I think Jeffrey Stone has it about right in his Huffpo article on the jurisprudential doctrine that goes under the name of “originalism.”
With this mindset, the notion that any particular moment’s conception of rights should be taken as exhaustive would have seemed patently wrong-headed to the Framers, just as it would have seemed wrong-headed to them for anyone to assume that their knowledge of the human body or of the universe should be taken as final and conclusive. Such a conception was antithetical to the very core of Enlightenment thought and to everything the Framers stood for . . .
The narrow, frightened originalism of Clarence Thomas and Antonin Scalia would have seemed absurd to the Framers. As a constitutional methodology, it not only invites the manipulative and result-oriented use of history, but it also and more fundamentally denies the true original understanding of the Framers of our Constitution.
Conservative activism offers the worst of both worlds. It undermines the decisions of democratic majorities, not in order to protect the rights of minorities, or the powerless, or the oppressed, or the disenfranchised, or the dispossessed, or the poor, or the downtrodden, or the accused, but in order to protect the interests of corporations, the wealthy, the privileged, the majority, and the powerful.
