An excerpt from the NYTs:
“If you took the originalists at their word,” said David Strauss, a liberal University of Chicago law professor, “you could punish people for criticizing the government, the federal government could discriminate against anyone it wanted to, and there’s a real argument that the interstate highway system is unconstitutional. The federal prison system and criminal law would be in serious question, and forget the Federal Reserve. It would be gone.”
In the end, however, many liberal scholars believe that if the court took seriously the text and history of the entire Constitution — including the 16th Amendment, authorizing the income tax, and the 19th Amendment, which gave women the right to vote — then originalism should just as often lead to liberal as conservative results.
On issues like campaign finance, health care, financial reform and gender discrimination, these scholars say, taking the 20th-century amendments as seriously as those passed in the 18th and 19th centuries would guarantee a constitutional originalism that upheld modern visions of liberty and equality.
“I hope Scalia and Thomas succeed in making their colleagues care more about text and history,” said Douglas Kendall, the president of the Constitutional Accountability Center, which argues that originalism can favor progressive causes. “But if they’re honest in reading and considering these sources, it won’t always yield the results the Tea Party wants.”
Turtle Talk 