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Charles Fried, On Judgment, 15 Lewis & Clark L. Rev. 1025 (2011).

Abstract: The Supreme Court’s constitutional decisions have been a mixed blessing. Some of the Court’s most celebrated decisions have, in the long run, done more harm than good. Mapp v. Ohio, while it might have done a certain amount of good at the time, brought with it an automatic rule of exclusion that has grossly diverted attention from the guilt or innocence of the accused. Others, like Brown v. Board of Education and Lawrence v. Texas, were watershed moments in the development of American civil rights. But what made these decisions good or bad? My most important argument will be a negative one: it had nothing to do with the original intent of those who framed or ratified the constitutional provisions in question. The rise of originalism has brought with it an almost obsessive concern with history. Originalism seeks to substitute keenness of intellect for prudent judgment because the first is thought to be objective. The second is thought to be subjective, thereby subjecting us to the rule, not of laws, but of men. Yet the wise judge recognizes that the search for security and objectivity in history is a will-o’-the wisp. Wisdom, not historical rigor, is the touchstone of good judgment.