The judiciary is not supposed to create law, but interpret it. It can create precedent based on interpretation of existing law but not create something new out of what they want the law to say.
The purpose of the Courts is to dispense Justice. This will invariably involve making new law. If you insist upon saying this is just "interpretation" when you do it, but is some sort of over-reach when other people do it, I feel the same way as when I see a sports star insist they were "within the spirit of the game" despite cheating while their opponents aren't... (e.g. ball tampering in cricket is very bad for this)
The thing that's special about the courts compared to say, a legislature or executive government is that they deal only in Specifics. They must consider _actual_ things that happened and judge those. All those named cases like Brown v Board of Education are about real people, to whom real things happened. That's what the judges are for. It will be necessary, from time to time, in the process of achieving Justice for the people those real things happened to for the court to make up from whole cloth entirely new law, and a good judge should not shy away from this practice where it is necessary.
Sure enough "Originalist" judges do not, in fact, shy away from making up new rules to achieve justice. They use their "originalism" instead to defend situations which presumably _they_ think are just but which seem wholly unjust to their fellow judges, and they deserve nothing but scorn for that. Say what you mean, and mean what you say.
The words in the Constitution meant something to the people who wrote and ratified it. The Constitution protects you from having your property taken without due process of law. By itself that means nothing. What process is due? A vote of the legislature? The diktat of the President? A ruling by a court? Do you get an appeal? And what is required for patents, which operate very differently from more typical kinds of property? The people who ratified the Constitution didn't vote on meaningless phrases. We must look to what people meant by due process of law when the Constitution was passed.
Ha. As if. Consider Medicaid expansion. A party line vote determines that somehow, even though the Congress who drafted and voted on this law meant one thing so recently everybody involved is on TV saying so, it actually means something else because well now we have all these Republicans and they want to tear it to pieces.
Or, let us not be partisan, take US v Windsor. I think this was terrible law. All four opinions are like crap I'd see covered in red pen after a law professor is done marking homework, Scalia's is maybe _funniest_ and he gets a zinger in where he predicts what happens next correctly - but it's still bad law, and the majority basically blunders about looking for any excuse to reach their preferred conclusion. Neither is really interested in what was meant by the people who voted on the Act, nor on what the US Constitution means about due process, they're just scrabbling to defend their positions, the two smaller dissents are also garbage.
The _result_ in Windsor feels like Justice to me, but these decisions (and dissents) are not good law. Posner's decision (in the Seventh Circuit later on for another gay marriage case) is much better law, and I am hopeful that future decisions are modelled more on his line of thinking than the muddle in Windsor.
What matters to originalists is the original public meaning of the text of the law. Interviews with political pundits are not law.
We can agree here.
>> This will invariably involve making new law.
Talk about your all-time leaps of logic, sheesh.
That's the theoretical extreme; it's always dramatic, but doesn't apply in reality which is far more complex, where logic is uncommon, and where rules are tempered by judgment, justice, and compassion.
Yes.
> This will invariably involve making new law.
Categorically not.
> If you insist upon saying this is just "interpretation" when you do it, but is some sort of over-reach when other people do it...
Which no-one has done. There is a very clear difference between setting legal precedent vs creating a new law. If you don't know the difference then you don't know enough to have a fully informed opinion on this topic.
> The thing that's special about the courts compared to say, a legislature or executive government is that they deal only in Specifics.
Kind of. Interpretation of laws is more about working out how the vagueness of life applies to the specifics of law. So.. it's only specifics on one side of the equation.
> It will be necessary, from time to time, in the process of achieving Justice for the people those real things happened to for the court to make up from whole cloth entirely new law
Nope. Fundamentally not true in the slightest. In fact we have specific legal opinions from the Supreme Court that state this. There have been numerous times that the SCOTUS has said that they agree with the objection to the law but that said law is still legal and to change it is not the purpose of the court but the legislature.
This point appears to be your core thing and it's fundamentally wrong in every first world judiciary.
This isn't about originalism at this point - it's about you not understanding the basics of our legal system.