Magnificent News: The Opinions Essay: Originalism is bunk. Liberal lawyers shouldn’t fall for it.

Thursday, December 1, 2022

The Opinions Essay: Originalism is bunk. Liberal lawyers shouldn’t fall for it.

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By Michael Duffy
Opinions editor-at-large

Originalism — the idea that the Constitution can be interpreted only as its 18th-century authors intended — has been the controlling view among conservative jurists for a generation and is now the dominant view on the Supreme Court. That's why Post columnist Ruth Marcus shines a sharp light on the doctrine in her latest Opinions Essay: "Originalism is bunk. Liberal lawyers shouldn't fall for it."

Marcus frames the challenge this way: "Why should we understand — much less accept — the constitutional meaning as fixed at a time when women lacked the right to vote, when recently enslaved Black people attended segregated schools, when the economy was agrarian and when the notion of gay rights was unthinkable?"

Marcus's essay traces originalism's roots and rise — and details its flaws — explaining that conservatives seized on the theory in part because it was such an effective vehicle to arrive at the outcomes they preferred in the first place. "Originalism," she writes, "trends almost inexorably right."

A great deal now turns on the power of this doctrine, as the conservative-majority court approaches decisions this term on affirmative action, voting rights, redistricting and religious freedom.

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