While Congress can add justices to the Court, it can only do so if its act is “necessary and proper.”
This will hopefully be my last post addressing Saul Cornell’s series of critical posts on me. Some debates are fun and others are productive. This one — with a disrespectful opponent, who engages in cheap shots, and does not seem to understand when he is mistaken — is merely tiresome.
What has been gratifying, however, is that others, from across the academic spectrum, have recognized the problematic nature of Cornell’s attacks.
Mary Dudziak, a leading legal historian at USC, writes on the Legal History Blog:
Saul Cornell’s posts on Originalism during his guest stint at Faculty Lounge are so over the top that perhaps they make this point on their own. But in case it needs to be said: it’s not effective to paint other scholars as cartoonish with posts that are themselves cartoonish. Cornell has made important scholarly contributions in the past. He threatens his own future readership with blogging that brings more heat than light to the question of the role of history in constitutional interpretation. We don’t like it when conservatives mischaracterize scholarship for the purpose of constructing an argument. And we don’t like it when liberals do that, too.
It is posts of this sort that help to elevate the debate on the internet. As Mary’s post makes clear, there are real disagreements about law and history here, but to make progress, one needs to engage those disagreements in a fruitful way.
Others too have recognized the problematic nature of Cornell’s posts. Orin Kerr writes as a comment to a Cornell post, “I suspect that the personal attacks in your posts and your extremely dismissive tone don’t do your arguments any favor: They make it seem like you have a personal problem with a few originalists, rather than a principled argument against originalism. Maybe that’s not the case, but I believe that’s the impression I think you’re leaving.” David Bernstein’s initial responses to Saul, raising problems with his post, also appeared to fall on deaf ears. Others have written to me with their own “Saul Cornell stories,” but I won’t bore you.
So, hopefully, I can now move on to more enjoyable, more productive posts.