Tackling anti-originalist misinformation

As some of you may know, Justice Ginsburg recently gave a speech defending the Supreme Court's new trend of ignoring the Constitution in favor of hazy international notions. I happen to think the Constitution is a remarkable document, and that the Supreme Court justices are committing something close to treason when they ignore it. Now Edward Whelan exposes the fundamental weaknesses and biases in Justice Ginsburg's argument. I especially enjoy the way he destroys Justice Ginsburg's attempt to undermine the originalist viewpoint by claiming that the authors of the notorious Dred Scott decisions were self-proclaimed originalists:

The rhetorical centerpiece of Ginsburg's speech is a crude attack against originalists — those who adhere to the original understanding of the Framers' Constitution and of the various amendments to it. Here's the structure of her illogic: (1) Chief Justice Taney in Dred Scott stated the originalist principle that no 'change in public opinion or feeling . . . in the civilized nations of Europe or in this country should induce the [Supreme Court] to give to the words of the Constitution a more liberal construction . . . than they were intended to bear when the instrument was framed and adopted.' (2) This statement of originalist orthodoxy, Ginsburg asserts, is 'extreme.' (3) Notwithstanding the fact that the Civil War and the post-Civil War Amendments reversed Dred Scott, Chief Justice Rehnquist and Justices Scalia and Thomas somehow continue to share Taney's 'extreme' position that constitutional rulings should not be based on foreign developments. With this glaring non sequitur, Ginsburg absurdly insinuates that the position espoused by her three colleagues has some special kinship with Taney and Dred Scott. Taney's opinion in Dred Scott is deservedly infamous, but not because of its recitation of originalist orthodoxy. Besides its overt racism, the main legal defect in Taney's opinion is that, while pretending to be faithful to originalist principles, it in fact marked the Court's first use of the modern judicial activist's favorite tool, 'substantive due process,' to invalidate a statute — the Missouri Compromise of 1820, which prohibited slavery in the northern portion of the Louisiana Territories. Notably, the dissenters in Dred Scott invoked and properly applied the very originalist principles that Ginsburg finds abhorrent: 'I prefer the lights of Madison, Hamilton, and Jay, as a means of construing the Constitution in all its bearings,' wrote Justice McLean. '[I]f a prohibition of slavery in a Territory in 1820 violated this principle of [due process], the ordinance of 1787 also violated it,' explained Justice Curtis in exposing Taney's deviation from originalism.

If you agree with me that the above is good stuff, take time to read the whole article.