If we're picking people to draw out of their own conscience and experience a 'new' Constitution, we should not look principally for good lawyers. We should look to people who agree with us. When we are in that mode, you realize we have rendered the Constitution useless.
A search is a search, even if it happens to disclose nothing but the bottom of a turntable.
There is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.
What is a moderate interpretation of the text? Halfway between what it really means and what you'd like it to mean?
If you think aficionados of a living Constitution want to bring you flexibility, think again. You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That's flexibility.
The Court today completes the process of converting Title VII of the Civil Rights Act of 1964 from a guarantee that race or sex will not be the basis for often will.
In a big family the first child is kind of like the first pancake. If it's not perfect, that's okay, there are a lot more coming along.
A law can be both economic folly and constitutional.
I am something of a contrarian, I suppose. I feel less comfortable when everybody agrees with me. I say, 'I better reexamine my position!' I probably believe that the worst opinions in my court have been unanimous. Because there's nobody on the other side pointing out all the flaws.
Originalism is sort of subspecies of textualism. Textualism means you are governed by the text. That's the only thing that is relevant to your decision, not whether the outcome is desirable, not whether legislative history says this or that. But the text of the statute.
Why in the world would you have it interpreted by nine lawyers?
A journalistic purpose could be someone with a Xerox machine in a basement.
Why can't the state accede to the public's wishes?
You could have 50 different states having 50 different regulations... until they were all litigated out.
It's not up to the courts to invent new minorities that get special protections.
Power tends to corrupt. But the power in Washington resides in Congress, if it wants to use it. It can do anything - it can stop the Vietnam War, it can make its will felt, if it can ever get its act together to do anything.
Originalism says that when you consult the text, you give it the meaning it had when it was adopted, not some later modern meaning.
But I'm not pro death penalty. I - I'm just anti the notion that it is not a matter for democratic choice, that it has been taken away from the democratic choice of the people by a provision of the Constitution.
By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.
I used to say that the Constitution is not a living document. It's dead, dead, dead. But I've gotten better. I no longer say that. The truth is that the Constitution is not one that morphs. It's an enduring Constitution, not a changing Constitution. That is what I've meant when I've said that the Constitution is dead.