RANDY BARNETT: Out of touch law professor criticizes Judge Gorsuch and “originalism.” Good point here:
I have a question for the Brookings Institution that never seems to occur to nonoriginalists on the Left:
Why would you possibly want a nonoriginalist “living constitutionalist” conservative judge or justice who can bend the meaning of the text to make it evolve to conform to conservative political principles and ends? However much you disagree with it, wouldn’t you rather a conservative justice consider himself constrained by the text of the Constitution like, say, the Emoluments Clause?
Yeah, the Left’s worst nightmare is right-leaning judges who are as loose with the Constitution as lefties have been. In fact, back when we interviewed Richard Posner for the late, lamented Glenn & Helen Show, one interesting takeaway was that his book on terrorism and civil liberties, Not A Suicide Pact: The Constitution In A Time Of National Emergency, was basically a “living Constitution” approach to parts of the Constitution that lefties preferred to regard as fixed and unchangeable.