At NRO, Ed Whelan has a harsh (but appropriate) commentary on Justice Stevens' recent speech about Justice Scalia. He notes that Stevens quotes historian Joseph Ellis:
Expressing his disagreement with the role that Justice Scalia believed that originalism should play in constitutional analysis, Stevens closes by approvingly quoting this passage from historian … Joseph J. Ellis:
Jefferson spoke for all the most prominent members of the revolutionary generation in urging posterity not to regard their political prescriptions as sacred script. It is richly ironic that one of the few original intentions they all shared was opposition to any judicial doctrine of ‘original intent.’ To be sure, they all wished to be remembered, but they did not want to be embalmed.
Ellis has amply displayed his cartoonish misunderstanding of originalism before, and he does so again here. And so does Stevens by embracing Ellis’s misunderstanding.
He then observes:
For starters, the two justices that Ellis is referring to—Justices Scalia and Thomas—embrace the original-meaning species of originalism, not the original-intent species. … More importantly, originalists believe only that the meaning of constitutional provisions is to be construed according to originalist principles, not that policy decisions within constitutional bounds should be made by asking what the Framers would have done. In other words, originalists recognize that the Framers created a constitutional republic in which citizens over time can, within broad bounds, revise policies to changing circumstances.
Why is it that so many otherwise intelligent academics can’t understand this elementary point? Might it be that they have no answer to it?
And in a follow-up post, his further explanation of how Professor Ellis misuses Jefferson:
Jefferson was discussing the need to make sure that a constitution is amendable by the people, not the judicial role in interpreting a constitution.
[with a lengthy quotation of the Jefferson letter on which Ellis relies]
Contrary to Ellis’s Jefferson, relied upon by Stevens, the real Jefferson was an originalist, believing that we are bound by the original meaning of any constitution we inherit. This is why he advocated frequent revisiting of the question whether any particular constitution suited the needs of the present generation, for only the people could change it to suit themselves better. For judges to do what Jefferson counseled the people to do would have been, in his eyes, the rankest form of usurpation, and contrary to the whole purpose of a constitution. But this judicial usurpation is what Stevens, misled by Ellis, would have us believe Jefferson favored.
Posted at 6:36 AM