Kirsch on Originalism

The Indiana Lawyer reported that Senator Whitehouse questioned Kirsch in his Judiciary Committee hearing:

“I’m a little bit concerned about restricting yourself to the intent of the people or what we believe, or reconstruct, their intent to have been at the time that it was written,” Whitehouse said. “… When the Equal Protection Clause in 14th Amendment was adopted in 1868, I don’t think anybody who was involved in that expected it would require integrated schools … and, indeed, for nearly 100 years it was not seen that way until the Supreme Court decided in Brown v. Board of Education … that segregation in public schools was an offense to the Constitution as well as to our moral and civic fabric. So walk me through how you would get around the ‘at the time written’ problem?”

Kirsch replied that he would take the statute and apply the ordinary meaning of the text at the time the law was written.

Read the full story here.

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