This is a pretty blistering response to Michael Ramsays critique of Garrett’s critique of Scalia’s originalist opinion in Jones. Garrett makes a number of fair points, but I want to focus on the last about the orthodoxy of originalism:
But originalist scholarship should not require a loyalty oath. It is absurd to claim that originalist methods are capable of resolving all our questions “across the board.” Unless originalism is magic, it is going to fail in some cases. United States v. Jones is such a case.
Perhaps some argument from 18th Century law and philosophy would clarify the issue of massive warrantless computerized satellite surveillance. But if so, Justice Scalia didn’t produce it in Jones. In fact, my article does not actually so much “make fun of Scalia” as report (admittedly with wry pleasure) that his junior colleague, Samuel Alito, openly mocks his opinion.
There is a difference between good originalism and bad originalism. Scalia’s opinion was bad originalism. Michael Ramsey should be addressing its failures; they are far more significant than mine.
The last point seems about right. There is such orthodoxy to legitimate originalism as a jurisprudence that even shoddy work is accepted. Like–look Scalia did it, it uses history, so it’s gotta be good!
This is similar to my critique of Calabresi and Rickerts, alleging that it is originalism at the wrong time. Garrett may calls this bad originalism.