Sun. May 19th, 2024

America is captive to a legal theory that dictates our laws on guns, abortion, and so much more. We need to act. (photo: Jon Stich/Slate)


America is being led astray by a small handful of folks who are drunk-driving on originalism—and not in a funny Marx Brothers, spin-around-in-circles-and-all-fall-down sort of way. No, it’s in a children-murdered-in-their-classrooms, women-hemorrhaging-in-parking-lots, environmental-and-health-regulations-destroyed kind of way. And that’s because the whole nation is currently lashed to a small, stupid, perpetually changing theory of legal interpretation variously known as “originalism,” or “textualism,” or “original public meaning,” or “history and tradition.” A theory that is—unless you were born in the 1990s—younger than you are.

Whatever the current flavor, originalism and its ever-growing progeny hold that judges and justices should ignore every interpretive methodology judges once used to understand a legal text in favor of free-floating feelings about history: What do we think the drafters of the text intended? What do we wish they had intended? What did the readers of contemporaneous public documents understand that text to mean? What did random dictionaries of the time reflect about … words? What—as cited by a lawyer for former President Donald Trump in arguing recently that presidents can occasionally order political assassinations without facing criminal consequences—did Benjamin Franklin announce at the Constitutional Convention? And also, how did the crowd react?

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