Something else troubles me about the recent blog-o-battle between Saul Cornell and Michael Rappaport.
What makes modern day attacks on “new originalism” troubling is that they are conveniently coupled with a history that justifies a progressive reading of the constitution. Cornell and Rappaport are just talking past each other. I would love a debate that focuses just on methodologies without regard to outcome (similar to the approach I took in my critique of Calabresi’s originalism piece, where i accept his history as accurate for the sake of argument). It is so easy to get caught up in history, and definitional terms, that the item of disagreement is lost.
Mary Dudziak said it quite well:
Saul Cornell’s posts on Originalism during his guest stint at Faculty Lounge are so over the top that perhaps they make this point on their own. But in case it needs to be said: it’s not effective to paint other scholars as cartoonish with posts that are themselves cartoonish. Cornell has made important scholarly contributions in the past. He threatens his own future readership with blogging that brings more heat than light to the question of the role of history in constitutional interpretation. We don’t like it when conservatives mischaracterize scholarship for the purpose of constructing an argument. And we don’t like it when liberals do that, too.