originalism 
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SOURCE: Politico
6/26/2022
On the Historical Dilettantes Practicing Originalism
by Joshua Zeitz
"The functional problem with originalism is that it requires a very, very firm grasp of history — a grasp that none of the nine justices, and certainly few of their 20-something law clerks, freshly minted from J.D. programs, possess."
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SOURCE: Slate
6/24/2022
Thomas's Guns Opinion is Ahistorical and Anti-Originalist
by Saul Cornell
"Ultimately, the majority opinion in NYSRPA v. Bruen is one of the most intellectually dishonest and poorly argued decisions in American judicial history."
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SOURCE: The New Yorker
6/23/2022
Adam Winkler on Thomas's Historical Cherry-Picking on Gun Rights
Isaac Chotiner interviews law professor and legal historian Adam Winkler on the selective use of history in the New York state gun rights decision.
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6/5/2022
What Would Madison Think of Originalism? Depends When You Asked Him
by Don Fraser
James Madison moved away from a strict constructionist position based on public necessity and acceptance of legislation based in implied powers. Whatever one can say about the originalist legal theory behind the leaked Dobbs opinion, it's not Madisonian.
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5/29/2022
Originalism, History, and Religiosity are the Faults of Alito's Reasoning in Dobbs
by Robert Spitzer
Justice Alito wrote in Dobbs that Roe v. Wade was “egregiously wrong from the start.” But that tart conclusion more aptly applies to the draft verdict of the good justice.
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SOURCE: Made By History at the Washington Post
11/3/2021
If the Justices Really Value "Originalism," They Can Only Vote One Way in Guns Case
by Saul Cornell
"If the justices professing to believe in originalism are sincere about their method, this case offers the rare opportunity to prove that originalism is not always a prescription for results-oriented judging that follows a conservative political agenda."
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SOURCE: Slate
3/19/2021
Neil Gorsuch Supports an Originalist Theory That Would Destroy Modern Governance
Julian Davis Mortenson and Nicholas Bagley put forth a sweeping argument: an ascendant legal theory championed by conservative originalists has no actual basis in history.
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SOURCE: Chronicle of Higher Education
3/1/2021
Originalism’s Original Sin
by Adam Shapiro
Liberal critics should understand the ways that Constitutional originalism's practices of reading and resolving conflicts in the text owes a great deal to biblical literalism. Historians of religion can help understand what's at stake.
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SOURCE: The Atlantic
10/25/2020
Amy Coney Barrett’s Judicial Philosophy Doesn’t Hold Up to Scrutiny
by Angus King and Heather Cox Richardson
"To put it bluntly, the whole premise of originalism is nonsense in that it pretends to make the work of the Supreme Court look straightforward and mechanical, like 'calling balls and strikes,' in Justice John Roberts’s famous phase."
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SOURCE: Made by History at The Washington Post
10/26/2020
Amy Coney Barrett’s Philosophy Has Far Worse Roots Than Most Americans Know
by Simon Gilhooley
At the core of originalism is a fundamentally conservative effort to limit the possibilities of our constitutional order to the imagination of historical figures from the 18th century, which included racial hierarchy and support for chattel slavery.
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SOURCE: Washington Post
10/16/2020
The Framers of the Constitution Didn’t Worry about ‘Originalism’
by Jack Rakove
"Some of the key words and terms in our constitutional vocabulary were subject to pounding controversy and reconsideration. One has to engage these debates to understand how Americans were thinking about these issues at the time."
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SOURCE: New York Times
10/16/2020
Which Constitution is Amy Coney Barrett Talking About?
by Jamelle Bouie
The Times columnist argues that the original meaning of the Reconstruction Amendments establishes a constitutional vision of equality and civil rights that conservative originalists ignore.
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SOURCE: Duke Center for Firearms Law
10/14/2020
Amy Coney Barrett on Guns
by Jake Charles
A Second Amendment scholar examines the SCOTUS nominee's historical interpretation of prohibitions on individual firearm ownership, concluding that her record shows a commitment to gun rights but uncertainty about how she might rule on particular cases.
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SOURCE: Duke Center for Firearms Law
10/7/2020
Why Heller is Such Bad History
by Noah Shusterman
Antonin Scalia's opinion in District of Columbia v. Heller ignored the actual history of the early American militia in order to invent an individual right to gun ownership.
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7/23/2020
What the Faithless Electors Decision Says about SCOTUS and Originalism
by Ray Raphael
The outcome of the "faithless electors" case shows that judicial "originalists" use that principle pragmatically and selectively.
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SOURCE: The Atlantic
5/26/2020
There’s No Historical Justification for One of the Most Dangerous Ideas in American Law
by Julian Davis Mortenson and Nicholas Bagley
The delegation of regulatory power to federal agencies is the indispensable foundation of modern American governance. And it is under siege.
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SOURCE: The Atlantic
4/3/2020
Common-Good Constitutionalism Is an Idea as Dangerous as They Come
by Garrett Epps
A recently published theory of law is an argument for authoritarian extremism.
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SOURCE: The New Republic
12/5/19
Don’t Embrace Originalism to Defend Trump’s Impeachment
by Saul Cornell
Liberal legal scholars are at risk of falling into a right-wing trap.
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10/27/19
Why Originalism Should Apply to Impeachment
by Donald J. Fraser
I have never been a supporter of originalism. Until recently, I was also skeptical that impeachment was the right way to handle Donald Trump’s presidency. But I have recently changed my mind.
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7/8/18
The Founders Would Not Recognize Originalism—Why Should We?
by Donald J. Fraser
As John Marshall noted, “historians can never forget that it is a debate they are interpreting.”
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