Originalism doesn't seem relevant

Reading Annie’s thesis reminded me a lot about how rights as a concept are very interesting to consider within originalism. Personally, I don’t buy originalism. Relying on what a reasonable man would have construed when interpreting a statute requires the invoking of many subjective considerations and unarticulated extratextual factors, that essentially result in people deciding what the law should be. Considering many people at the time of the founders thought slavery/the deprivation of the rights of people of color and women were just, I don’t see any value in referring to what they think the text says in statutory interpretation (or what we think they think the text says).

Especially with rights, the founders would not be able to fathom the ways in which they function today. As Deckey says, technology and data mining have ensured that privacy is relevant in ways the founders would never dream of, so why are we relying on their interpretations to adjudicate contemporary legal issues? Its good and all that Madison agrees with an interpretation of privacy that gives more robust protections against partisan gerrymandering, but even if he didn’t, (at least to me) it still wouldn’t change the way in which the Constitution protects privacy. Sure, originalism allows us to have more stability, but that stability is at the expense of progress and hinders the incorporation of new knowledge and different circumstances into our constitutional interpretation. 

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