Judge Roberts on Trial

I still haven't received my print copy, so either my mail is slow or this is a late hit from Ronald Dworkin in The New York Review of Books October 20, 2005.

When Scalia tried to defend this view [Originalism] in a discussion of his judicial methods at Princeton some years ago, the objection was made that originalism, so understood, ignores a crucial distinction between what the framers intended to say and what they expected would be the effect of their saying what they intended to say. 2 The framers might have set out their own particular views about what counts as cruelty in punishment, what counts as a denial of equal protection in legislation, and so forth in the constitutional clauses they wrote. But they did not. Instead they chose to lay down general moral principles. So true fidelity to their intentions requires judges to ignore the framers' concrete opinions and do their best to apply these principles as moral principles: to decide, for themselves, that is, what punishments are in fact cruel and what treatment is in fact equal.

If some people think "general moral principles" means "deciding for themselves," that might be a reason why the Ten Commandments is so controversial in courthouses.