Amicus: How Originalism Ate the Law: The Trick

Slate Crime and Justice

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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