Originalism is a form of legal positivism and as such is devoid of moral force, except as a covert method of subverting a dominant left-liberal tradition.
The redoubtable David Skeel had an op-ed in yesterdaty’s Wall Street Journal: “A Nation Adrift From the Rule of Law.” It’s a bone-chilling must-read. Along the way, amidst horror stories of extra-legal bailouts and prosecutions, Skeel takes issue with the Eric Posner/Adrian Vermeule postmodernism-for-conservatives riff, which says that the rule of law is never worth a dang in a crisis and so why worry. Putting aside that “pushing the envelope isn’t the same thing as flouting the law,” one has to fear to crisis-induced lawlessness become the new normal. In support of this proposition, Skeel cites the Dodd-Frank Act. Hard to argue with that. E.g., the act requires the Federal Deposit Insurance Corporation (FDIC) to liquidate financial institutions that are deemed to be in trouble, without a whiff of due process. Then again, the FDIC has announced that it will instead use the liquidation mandate to save and recapitalize those institutions. In other words, whatever: we do what we want. Amazingly (or perhaps not), it took Congress well over 1,000 pages to say so.
David Skeel’s urges that the presidential campaigns should be confronted with the rule-of-law question: “What would you do to protect it in the future?” We haven’t heard much on the subject so far, and we probably won’t.