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How Originalism Ate the Law: The Trick

Slate News

Slate Podcasts

News Commentary, Politics, News

4.5 • 6K Ratings

🗓️ 4 May 2024

⏱️ 44 minutes

🧾️ Download transcript

Summary

Get your tickets for Amicus Live in Washington DC here.

In this, the first part of a special series on Amicus and at Slate.com, we are lifting the lid on an old-timey sounding method of constitutional interpretation that has unleashed a revolution in our courts, and an assault on our rights. But originalism’s origins are much more recent than you suppose, and its effects much more widespread than the constitutional earthquakes of overturning settled precedent like Roe v Wade or supercharging gun rights as in Heller and Bruen. Originalism’s aftershocks are being felt throughout the courts, the law, politics and our lives, and we haven’t talked about it enough. On this week’s show, Dahlia Lithwick and Mark Joseph Stern explore the history of originalism. They talk to Professor Jack Balkin about its religious valence, and Saul Cornell about originalism’s first major constitutional triumph in Heller. And they’ll tell you how originalism’s first big public outing fell flat, thanks in part to Senator Ted Kennedy’s ability to envision the future, as well as the past.

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Transcript

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0:00.0

Over the past four decades, a revolution in robes has changed the way America does constitutional law and therefore how all Americans live their lives.

0:11.5

Remember how mad you were after Dobbs, after Bruin?

0:15.8

After the Supreme Court swept away affirmative action and the separation of church and state, every one of those

0:22.7

developments is traceable to the near monopoly of an old-sounding but actually relatively new brand

0:29.8

of constitutional interpretation. The new way some justices divine the meaning of the law?

0:36.2

Originalism. The cases vary, but at their heart, is the same

0:40.3

lie, that all constitutional law is frozen in the views of white men from the founding, and that

0:47.4

judges can reliably decipher exactly what those men thought. At the time of its creation,

0:53.9

originalism promised an approach

0:55.3

that would encourage judicial restraint. The theory instead delivered a Supreme Court

1:00.1

unbound by precedent, doctrine, or even the text in history it claims to worship, wiping

1:05.7

away hundreds of years of common law in its wake. What's more, originalism is deadly. There's nothing

1:12.2

theoretical about the lives upended or snuffed out as a result of decisions delivered under the

1:18.6

banner of originalism, like the gun cases, Heller and Bruin, impairing the government's ability

1:23.9

to combat out-of-control gun violence, and the overturning of Roe v. Wade,

1:28.6

triggering abortion bans that deny women access to life-saving care.

1:37.4

Welcome to How Originalism Ate the Law, a special series here on Amicus, complimented by a package of expert pieces at slate.com

1:47.4

slash originalism. We're going to explore the how, the why, and the what of originalism. How,

1:55.5

originalism became an article of faith for the right, why the left capitulated, and what the hell are we going to do

2:03.2

about it? I'm Dahlia Lithwick. I cover the courts and the law and democracy for Slate.

2:10.4

And I'm Mark Joseph Stern, senior writer at Slate covering courts and the law. Let's go back to the

2:15.7

beginning. We are firing up the amicus time machine to

...

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