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Constitutional originalism is the cornerstone of conservative jurisprudence today, but there are several rival versions of originalism, and sometimes you even hear about the “new” originalism, which sounds more like an old Spinal Tap joke. This week Steve Hayward caught up with John Eastman, the Salvatori Professor of Law at Chapman University’s Fowler School of Law and senior fellow at the Claremont Institute, to talk over how to think about originalism, and also the hot button issue of the moment—whether President Trump has the executive power to go around Congress to get a border wall built, and also who Trump should pick next for the Supreme Court if a vacancy comes up soon.
Closing bumper track this week is “Hollywood” by Spafford.
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An unsatisfactory discussion with John Eastman.
Strict constructionism, original intent, originalism – all nice labels for judicial perspectives which so-called conservatives have claimed as their own since the late 1960s; in other words, since conservatives began to lose the American culture.
Talk about a loser’s game!
Instead of looking for a philosophical foundation, which will be arbitrary, made-up and subject to disputation no matter what basis the so-called conservative (or liberal) devises, what Eastman and Hayward should be proposing are methods or a school of interpretation that will enable a real conservative court to overturn all liberal decisions including Miranda, Obergefell, Roe, Casey, Murray v Curlett, Davis v Carr, Wesberry v Sanders, NY Times v Sullivan and Brown v Board of Education in as short a time as possible.
If Steve and John can’t fathom such an approach to conservative jurisprudence; if instead they tell us that those cultural-altering decisions are now baked in the American cake, subject solely to political strategies such as the amendment process; if they argue against the bogeyman of “judicial activism” even when dressed in conservative robes – then they are as useless as the grifters and controlled opposition of Conservatism, Inc. and the business wing of the GOP, singing songs of impotence while they conserve nothing except the world the progressives gave us 15 minutes ago.
That was the discussion I wanted to hear.
Not about how to stop progressivism, Cultural Marxism and multi-culturalism, but how to roll it all back.