‘The #Originalism Trap’ is a cutting critique of the #judicial theory

Madiba K. Dennie argues that “originalism deliberately entombs historically #marginalized groups’ #legal claims to #liberation”

#SCOTUS #law #nonfiction #books
https://www.washingtonpost.com/books/2024/07/19/originalism-trap-madiba-k-dennie-review/

One of the more striking questions raised by #SCOTUS’ controversial recent decisions—such as its partial shielding of #Trump from #criminal liability for his efforts to overturn the legitimate result of the 2020 pres election—is how they square w/the court’s embrace of #originalism as a theory of constitutional interpretation. The court’s #immunity decision…was mainly non-originalist in its reasoning, despite the fact that 7 justices…have shown some affinity for originalist interpretation.

#law

#Originalism is the assertion that judges should be guided & limited in interpreting the #Constitution solely by something original in it, although that “something” has shifted over time — from the original #intent of its #framers, to the original public #meaning of its text, to the original #law at the time of its adoption, w/various sub-theories now debated. The theory has been sharply criticized.

#law #SCOTUS

For one thing, skeptics say, its adherents have abandoned their search for the #intent of the #framers, a quixotic task that can lead only to indeterminate answers. #Originalism as currently practiced is a modern invention whose methods have little to do w/how the founding generation conceived of the #Constitution or its method of interpretation, as recent historical research has shown. The theory’s advocates claim objectivity as one of its strengths, but the court relies on it haphazardly:

It’s invoked when its purported results align w/the priorities of #conservative #Republican activists — about individual #gun rights, for instance — & ignored or modified when, to take two examples, #SCOTUS wishes to invalidate #AffirmativeAction or strike down #protections for the #VotingRights of *minorities*.