The embrace of a so-called “originalism” by lawyers and judges who want to turn back the clock has been roundly–and effectively–criticised by legal scholars, who point out that (among other inconvenient facts) America’s Constitution was the product of many Founders, and thousands of citizens participated in the debates over its ratification. Multiple histories confirm that those individuals lacked anything close to an identical understanding of its provisions.
And then, of course, there’s that little problem with the passage of time. Conservative judges may sneer at the concept of a “living Constitution,” but properly understood, that concept simply requires us to apply the values the Founders were trying to protect to new and unanticipated “facts on the ground.”
A question I used to ask my students was intended to illustrate that point; I would ask the class what James Madison thought about porn on the Internet. Rather obviously, Madison was totally unaware of the Internet (also radio, television…most of our current methods of communication). But Madison and other Founders had very firm ideas about the value of free speech and the danger of government censorship–values that found expression in the First Amendment. The courts don’t limit application of the Free Speech clause to newspapers and pamphlets that were like those available when the Bill of Rights was passed–they apply the original principle to our current reality.
As a recent essay in the New Republic put it, originalists argue that the Constitution should be interpreted according to its original meaning, but they fail to ask the more pertinent question: original meaning according to whom?
In the case of the Constitution, the problem isn’t simply that its 55 Framers understood key clauses differently; it’s that the tens of thousands of ordinary Americans who publicly debated the document during the ratification process understood the text to mean different things, too. To paraphrase the historian Jack Rakove, there was never a single original meaning, only original meanings.
Many legal scholars argue (pretty persuasively) that originalism is just conservative politics masquerading as history. But Akhil Reed Amar, a law professor at Yale whose books on the Constitution are among my all-time favorites, is a scholar who argues that adhering to “original meaning” would support a lot of liberal outcomes.
In his latest, Born Equal: Remaking America’s Constitution, 1840–1920, the second in a proposed trilogy on the Constitution’s history, Amar traces the origins of the Reconstruction amendments—the Thirteenth Amendment, abolishing slavery in 1865; the Fourteenth Amendment, establishing birthright citizenship, due process, and equal protection in 1868; and the Fifteenth Amendment, granting Black men the vote in 1870—along with the Nineteenth Amendment, which extended suffrage to women in 1920. His central argument is that these amendments succeeded because their advocates framed them as fulfillments of the nation’s founding texts, above all the Declaration of Independence’s claim that “all men are created equal.” By rooting their arguments in the Declaration and interpreting the Constitution as the Founders supposedly intended, figures like Lincoln—the book’s central hero—emerge as the first true “originalists.”
The New Republic’s essay is lengthy, and engages primarily in a historical critique of Amar’s book. While that historical debate is worth reading, most germane to the current arguments about originalism is its observation that the Founders themselves rejected the belief that the Constitution had a fixed meaning–an argument made by Jonathan Gienapp, in his book Against Constitutional Originalism: A Historical Critique.
The essay concludes with another observation–one that we are re-learning at a time when an American President is dismissive if not contemptuous of any constitutional interpretation or restraint.
It wasn’t originalism that saved the nation or its Constitution, it was a decades-long struggle of ordinary people who knew what no document needed to tell them: They were all born free and equal. Sometimes their efforts were in accordance with the law, but sometimes they were in open defiance. Every time an enslaved person escaped to the North, and every time an abolitionist harbored them, they were flagrantly violating the Constitution. The lesson here can’t be that they should have been more faithful to the Constitution, good originalists like Lincoln. It’s that we should recognize the Constitution’s flaws, think creatively how we interpret it, and make it easier to amend. After all, no one wants another civil war.
Actually, there are elements in MAGA that would welcome another civil war, but the basic observation is sound.
Maybe everyone in the current administration should be forced to read the Constitution and the Amendments, so they could understand the principles this country was founded upon. It appears to me that a few of them do not know anything about history, starting with the guy at the top.
“Many legal scholars argue (pretty persuasively) that originalism is just conservative politics masquerading as history. But Akhil Reed Amar, a law professor at Yale whose books on the Constitution are among my all-time favorites, is a scholar who argues that adhering to “original meaning” would support a lot of liberal outcomes.”
My former friend (he left the friendship) stated that the Democratic party was based in Relativity, I couldn’t argue with that statement as progress is based on the outcome of which decision is best for the majority. There is nothing conservative to be found within the Republican party today who rule by Dictatorship with their minority control over the majority of Americans who are losing freedoms and civil and human rights daily. Trump’s MAGA minority is now spreading globally to distract us from domestic losses across the board and forced to protest by “No Kings” marches and protests such as the deadly protest against them we witnessed yesterday in Minnesota. Gov. Walz has been forced out of campaigning to remain as Governor to protect residents against the false and manipulated claims of fraud against the sitting government body. His constituents in Minnesota are being held hostage by the ruling minority at the federal level.
In the waning hours of yesterday’s deadly attack by ICE using numbers never before used in our history, Noem unknowingly spoke a truth. She stated the death occurred due to “Domestic Terrorism”…it certainly did. Trump’s ICE troops are his personal Domestic Terrorists and he is forcing our own military to support them, Americans terrorizing Americans.
“And then, of course, there’s that little problem with the passage of time. Conservative judges may sneer at the concept of a “living Constitution,” but properly understood, that concept simply requires us to apply the values the Founders were trying to protect to new and unanticipated “facts on the ground.”
In all of the confusion of Domestic Terrorism and Acts of War by Trump’s orders, I have forgotten which fool is attempting to put forth a bill in Congress to end the 1st Amendment, the foundation on which our Constitution is built. For some reason this morning, that old popular musical hit “Yellow Taxi” is running through my mind. “They destroyed Paradise and put up a parking lot!”
It seems to be, from the backward-thinking and dictator-coddling decisions of the 6 majority justices on THIS court, that they lack the intellect to grasp the concept of change in the human condition. It’s the same with the ilk of Mike Johnson, Steve Scalese and virtually all the other Republicans in our current government.
There is NO hope that the letter and intent of the Constitution will be accepted, revered nor respected by Republicans at any level. Why? Because their donors don’t believe in the Constitution at all and have told their employees no circumvent it and its rules wherever they can … for the sake of money.
Marx was right.
It’s obvious, Robbie, that they don’t understand much of anything, including, and most importantly, the head of the DOJ. Hell, Kristi Noem thought habeas corpus meant that, as POTUS, Trump could have anything he wanted. After a year of stonewalling and covering up the Epstein Files, Bondi claimed this week that they’ve only released 1% of the files. After she was a complete asshole during a Senate Oversight hearing, I cannot understand why she hasn’t been charged with contempt for missing the Dec 19th due date.
If you don’t want people to think that Washington is just a bunch of performative bullshit, at least act like you’re holding someone accountable.
And now, Trump realizes that if Democrats win the midterm elections, they will impeach him. While I would love for them to impeach him, that would mean months of doing nothing else.
Not sure what the Federalist Society teaches its lawyers, but it has nothing to do with the Constitution. I think they just introduce their lawyers to billionaire donors, like with the Heritage Foundation.
I’ve read many of the lame media’s coverage on Venezuela, but none of them mentions Rubio’s owner, Paul Singer, who amazingly bought Citgo at a forced sale in November ’25. He gains to benefit substantially from Maduro’s kidnapping.
The Constitution was a great idea, but how long did it govern the US before the oligarchy took over?
p.s. Trump’s administration just withdrew from 66 UN organizations, probably in response to Jeffrey Sachs’ admonishment of the US’s actions in Ukraine and Venezuela. Daniel Forti captured Trump’s version of the Constitution:
“I think what we’re seeing is the crystallization of the U.S. approach to multilateralism, which is ‘my way or the highway,’” said Daniel Forti, head of U.N. affairs at the International Crisis Group. “It’s a very clear vision of wanting international cooperation on Washington’s own terms.”
Please, I’m begging everyone, please don’t try to impeach Trump. It will never succeed in the Senate, and it will just increase his support among his base AND independent voters. And accelerate his fund raising, which is already setting records. If the Democrats succeed in taking one or both houses, it will be by slim majorities, and time would be better spent having a Congress that wakes up (is woke?) and stops Trump and his MAGAt supporters from further eviscerating the rule of law. An attempted impeachment is just a waste of time…
Tim, I completely agree. It would be a complete waste of time to attempt to impeach. Assuming Dems assume control of the House and Senate (hopefully), the agenda must be to start cleaning up the mess and passing legislation the prevents the USA from EVER electing a convicted felon as President again. And, there must be a change in the Supreme Court. Either term limits or increasing to 11. Otherwise we will continue to live in a Project 2025-like backward country.
As example of the “different meanings” reference-
Jefferson warned, in every age, in every country, the priest aligns with the despot.
His position on tax-funding for indoctrination in religious schools should be apparent to all jurists. Yet, Notre Dame Prof. Nicole Stelle Garnett, a friend of Amy Comey Barrett, is the legal scholar credited as most influential in advancing tax-funded religious charter schools. Garnett is a Manhattan Institute fellow.
Robbie, these fools would read it, and not understand a thing they’ve read, or, as they read it they’d grit their teeth, curse under their breath, and decide that they know better. They’d fall back on the Trump I BS. about “Alternative facts.”
Change scares the heck out of these so-called Conservatives, and so the fact that a few things have changed since the Constitution was accepted is anathema to them. They live in a No Change, Black and White world, and are threatened by anything that smells the slightest bit different/new.
Tin soldiers and Noem”s coming,
We’re finally on our own.
One dead in Minesso.
Todd, that his admin. has left 66 U.N. organizations, indicates, to me, that he is recreating his self-image as an empty, frightened, isolated, and isolating school-yard bully, on a world-wide scale. The damage he is creating will poison the entire planet.
if the magats read it, it would make fox news. then fox would and has,turn it into a farce. influencers would capture hits and money to slader its authors,all of them. the city dog catcher would be assigned to find them. theology in the religious belt also has its distractors. trumps church of devine golf where he spits out challenges while his golf buddies step back and let him play through.
if the schools today were supported with the fact,democracy and peoples rights are paramount to a strong,by the peoples government. but today the working class is a spoiled,toiled ignorant lazy and its a fact. this democracy as they see it is a handout for free. they have lost direction of who really defended this democracy,instead caring only about who went on concert tour and high fived with trump.
the fact is, social media has influenced this along with fox like media and its shareholders who have finally convinced the majority ,America sucks unless we fix it. we here defending it as the peoples choice,are being turned off and turned away as a echo of the past. since im numb to social media,and do not allow it to interfere with my open eyes on the street. weve lost the protection of these above articles that have kept us,alive. the talk is, fuck everyone except trumps domain here in NoDak. they dont care,they would disreagrd your views,and most of all,make sure everyone around,knows who you are.
I do not have many friends,and its not by my attitude or my reason to be helpful to,others. it because after 38 years in this part of America, i can call it like it is,and they do not like it. fact, im applying for local trucking jobs. my resume is life long,clean,every endorcement,never a DUI etc. the talk is, im a Bernie supporter,and thats the first thing they know,before i walk in their doors.small town talk,is what makes the influencers and news today. not what is really happening to America. thank the shareholders and billionaires,they are winning. and i hear nothing from them supporting a democracy for all..they are just being giddy about who,they screwed out of a living wage America,and what itnwill take to get the rest.dow 48000+ 2026.
dow 13000+2008. whos foolin who? it took over a hundred years to get to 13000 points.
Does it make sense to be tolerant when confronted by a large, well-organized group that spends vast sums to take away the civil rights of Americans?
Recognizing that the organization has had substantial successes in turning the country back by decades and, its members are positioned to inflict greater, future harm in pursuit of the organization’s beliefs, is it prudent to tip toe around and fail to name the enemy?
Would reasoning people give legitimacy to the group by accepting the excuse – some politicians and jurists who are group members reject the noxious tenets at the organization’s foundation?
Villanova Prof. Faggioli’s voice against the politics of the American Catholic Church should not be rare in the public square.
Ian:
thanks, that really bought back the time,s…
mmmm, yea,
one tin soldier
Caste.
Todd, I would argue that the Constitution created by the Founders was actually an oligarchy from the beginning, as only propertied white men had the vote. The Constitution itself contains no laws, per se. It’s an outline of what is necessary to have a decent government. The fact that the only prescribed punishment is for Treason should make that abundantly clear. Breaking laws has consequences, after all.
From our oligarchic beginning, we floated towards democracy a bit, but only spasmodically Between each spasm, we grew some real oligarchs Rockefeller, Carnegie, Morgan, Gould, and Mellon topped the charts at the beginning of the last century. We had our last democratic spasm in the 1960s. Since then we have Musk (an import), Bezos, Zuckerberg, Page, Ellison, Gates, Koch and some lesser billionaires.
With what we are experiencing now, we could either stay on this path and go to hell in a handbasket or we can fight to make the next spasm an enduring one that allows time to fix our democracy more permanently. It will take time,. effort, and courage. Younger people must take the reins. We Boomers have left a pretty clear path showing what NOT to do. Learn from that.
Tim, agree. don’t try to impeach. Find a better way.
last time all it did was make MAGA stronger.
It’s clear now that for Democrats to take majorities in both houses would not change much. First, The Rump* would ignore whatever legislation it* didn’t like. Second, it would use the veto power. There is little chance of veto-proof majorities for any restorative laws. The recent Minneapolis murder by an ICE agent and the immediate phony exoneration of the agent and stunning falsifications (LIES) by federal officials emphasize the gravity of our situation. Don’t waste any money betting that there will be “free and fair” elections this fall. Countering this nightmare would require nationwide mass protest that is hard to imagine actually happening.
*I regard our current president as a thing, not human. “The Rump” of course includes a portion of the anatomy often used as an epithet.
Peggy, I agree with you that “We the people…” was a marketing scam for the South. It really meant “we the oligarchs”…
Now, just today, Trump has raised the Defense Budget to $1.5 trillion because we may “experience a bumpy road.” No shit!
When the plans are to change the name of the Western Hemisphere to the Trumposphere and rule over it all, you just might offend some people with guns.
A day of protest is planned for Jan. 20 by 50501.
Authoritarianism vs. Democracy is thunderously clashing at this time. Trump regime by bypassing norms, precedent and law is pushing beyond authoritarianism into control that can only be gained/ enforced by his executive branch militia and the acquiesce of the department of war. Some of Congress can be bought and paid for to not bother with their oath to US constitution. Republican Congress obstructing the just procedure of governing needs to be addressed. Righting/strengthening the weak links in laws to protect democracy is vital.
The majority of the American people dislike what trump’s doing. The spotlight is still on their misuse of power and chipping away at Maga’s momentum. According to HCR the trump family applied for a banking license today. Wonder where all the Venezuelan oil money will go?
I don’t believe he will live for 3 more years. It may not matter in the long run because Vance is clearly owned by Thiel and in complete thrall to the techbros, including Musk. Vought is in charge of the dismantling of domestic government while Putin takes care of the foreign affairs.
Subtle changes, like delayed postmarks, will allow challenges to vote totals across the board in blue states.
Indiana is ruled by those with the same mindset as dump and his minions. I’ve got mine and I want more so I am taking yours. What are you going to do about it?
The ICE murderer will get pardoned and be hailed as a hero just like Rittenhouse.
Experts who study political moments identify 3.5% of citizens as the number that can make successful change occur.
There are scheduled protests in Indiana on Jan. 20. Anyone complaining about
the reign of Trump/GOP should go to the protests and take friends and family members.
Btw- one-third to 40% of union members and federal employees voted for Trump.
More than half (62%) of church-going, White Catholics voted for Trump in 2024, a 5% increase from 2020. An even higher percent of members of the non-denominational Christian churches voted for Trump.