originalism

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• 10/23/2022
  

  Originalism is Doomed to Failure. Will it Destroy Democracy First?

  by Richard Striner

  Textualism as a theory of judicial interpretation arose as a semantic game among academics, but has been put to brutal use by the Federalist Society to undermine the democracy that most 21st century Americans enjoy. 

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• SOURCE: Made By History at the Washington Post
  10/10/2022
  

  Does Justice Jackson Offer a Path to Defend Rights Through Originalism?

  by Evan Turiano

  Abolitionists and the drafters of the Reconstruction Amendments understood that the legitimacy of broader claims to rights and citizenship depended on making a claim on the purposes set forth for the Constitution. Ketanji Brown Jackson's recent voting rights dissent suggests she hopes to revive that tradition. 

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• 10/9/2022
  

  Lincoln Would have Had an Answer for the "Originalists"

  by Richard Striner

  The 16th President looked to the constitutional crises of his time and asked whether the document was created to serve the people or the other way around. Today he might ask the same of the Supreme Court. 

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• SOURCE: Mother Jones
  10/4/2022
  

  Justice Jackson's Questioning in Voting Rights Case Shows History Won't be Left to Court's Right Wing

  The new Associate Justice pushed back against the idea that the writers of the 14th Amendment intended for it to ensure "color-blind" treatment of voters rather than an affirmative defense of racially inclusive political participation. 

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• SOURCE: Above the Law
  10/3/2022
  

  Judge Laurence Silberman Dies—Do His Latter Years Make the Case for Judicial Reform?

  A legal observer suggests the influential judge's reputation might have benefitted from judicial term limits, as his penchant for judicial restraint took a hard turn toward activism in decisions on gun control and public pronouncements about confederate monuments. 

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• SOURCE: Michael Smith's Law Blog
  8/10/2022
  

  Choosing History—A Rejoinder to William Baude on The Use of History at SCOTUS

  by Michael Smith

  The problem with the historical arguments in this term's SCOTUS decisions is that the court isn't "using" history but "choosing" it—deciding whether or not historical examples map onto present beliefs about the legitimacy of rights or regulations. 

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• SOURCE: Washington Post
  8/8/2022
  

  Law Prof: If Recent SCOTUS Decisions Relied on Bad History, Opponents Need to Come Up with a Better Version

  William Baude of the University of Chicago argues that if historical arguments have been used selectively in recent cases, it opens the door for dissenting justices to propose more compelling narratives about the constitutional basis of rights. 

• 
• 7/31/2022
  

  Weaponizing Bad-Faith History is a Conservative Tradition from Jim Crow to Alito

  by Charles J. Holden

  "Conservatives’ invocations of history often mixed wishful thinking about the past with bad faith in interpreting it. And it was always done with the present-minded purpose of maintaining elite white male rule, especially on matters of race."

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• SOURCE: Made By History at the Washington Post
  7/22/2022
  

  What Conservative Justices Get Wrong About the Founders

  by Timothy C. Leech

  It's preposterous to argue that the Founders, men of the Enlightenment generation, would have intended for the constitution they drafted to be immutable and unchanging. 

• 
• SOURCE: The Atlantic
  7/20/2022
  

  Originalism is Just Selective History

  by David H. Gans

  "This is a Court that insists it is following history and tradition where they lead, while cherry-picking the history it cares about to reach conservative results."

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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. 

• 
• 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. 

• 
• 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. 

• 
• 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.