In this essay, authors Peter M. Jaworski and Kee En Chong examine the apparent incoherence between progressives’ criticisms of originalism and their adherence to Supreme Court precedents. The authors argue that progressives face a dilemma: either archetypal progressivism is impractical, or it is inconsistent. Applying a progressive theory of interpretation to the meaning of court precedents would lead to an “explosion of interpretation,” whereby each legal actor would be free to apply his or her own interpretation to a legal rule. Therefore, progressives must either embrace this potentially chaotic result or adhere to originalist methods of interpreting legal judgments, which they have roundly criticized as methods of interpreting the constitution. The authors conclude that, given the impracticality of universally applying progressivism to interpret judgments, progressives have no choice but to live with the internal inconsistency in their chosen method of constitutional interpretation.
Progressivism for Me, but Not for Thee
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