Arlen Specter again: If we followed original intent, the US Senate would still be segragated, with caucasians on one side of the chamber and blacks on the other side. The man is either an idiot, or a liar. He is an idiot if, as a lawyer, he does not--as Bork put it--understand what originalism means. He is a liar if, as I believe, he does in fact know what originalism means, but lies about it for some reason. Either way, as far as I am concerned, the man has no business having a say on who should be on any bench, not even justice o' the peace in Mayberry, RFD! (Of course, that is up to the people of the state of Pennsylvania, who keep electing him to the Senate which, of course, means that he does have a say in who sits on a federal bench. I'm just saying that the people of PA, who elect him, ought to think about whether he's really qualified. I mean, after all, the man is either a liar or an idiot.)

Furthermore, and demonstrating either his ignorance or his dishonesty (well, he is a politician, after all!), Specter is just wrong about what originalism means. Here, paraphrased, is how Scalia defines originalism: One cannot adopt a theory that the Constitution is evolving and the court will tell you what it means.

But there is another reason why Specter is wrong: the Constitution, specifically in the 14th Amendment (sec. 1) forbids discrimination:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws (emphasis mine).

Now, on an originalist view, the meaning of that amendment will never change. That is not true, on the contrary view (i.e., "living breathing document" sewage). On the contrary view, any term in the amendment could be re-defined such that--what do you know?--the Constitution really does permit states to deny equal protection of the laws. And let's be clear: there is nothing--NOTHING--that would prevent the court from re-defining any term. It already does so with impunity.

(Speaking of Bork: yesterday, he had an editorial printed in the Wall Street Journal (and available here) in which he describes the problem with what the court has become. It is a must read.)