RBG: “Founding Fathers would have agreed with” NY Times v. Sullivan “in the 1960s.”

April 21st, 2014

This is an interesting form of originalism by Justice Ginsburg:

She called the Times vs. Sullivan ruling a landmark during the civil rights era because it allowed the national media to freely report on the civil rights struggle across the South. The decision “is now well accepted,” she said. “I think the Founding Fathers would have agreed with it in the 1960s,” she said.

Is this some form of prospective originalism, that asks how the founding generation would view constitutional law if they lived in the present? I thought we were supposed to ask how the founding generation would have dealt with an issue like libel of public officials in 1791. Oh wait, we know the answer that question–see the Alien and Sedition Act.

This is keeping with RBG’s previous statements that she is an originalist.

“I consider myself certainly an originalist in this sense,” Ginsburg said. “The founders of our country were great men with a vision. They were held back from realizing their ideas by the times in which they lived. But I think their notion was that society would evolve and the meaning of some of the grand clauses in the Constitution, like due process of law, would grow with society so that the Constitution would always be attuned with the society that law is meant to serve.”