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Illiberal Law

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Sometime in the 1960s legal scholars on the left began to detect vague penumbras and emanations in the US Constitution, the existence of which no one before had ever suspected. Out of these spectral openings emerged new unheard-of rights: the right to contraception, the right to an abortion, affirmative action, “gay marriage,” the right of minorities to be treated differently in order to be equal. And so, in a matter of years, a new constitution was created out of thin air. Just like that. Of course those scholars knew that these vague emanations were nonsense, it was all a high-sounding legal theory to cover for the fact that they were going to do whatever they wanted, and the majority who objected, well, that majority could suck on it. They knew the Constitution means exactly what they said it means. Nothing more, nothing less. In response to this legal sleight of hand timid and principled conservatives put forward the notion of originalism, that the Constitution means exactly what t