July 6, 2021

Episode 5 - The Threat of "Originalism"


In this episode, Garrett Epps speaks with Victoria Nourse and Peter Shane to break down the claims of "originalism" and show how this flawed legal theory, as applied to the executive branch, has pushed our system to the brink of dictatorship.

Legal arguments on constitutional issues are dominated, more and more, by the claims of “originalist” jurisprudence. The term, originated by the conservative legal movement during the Reagan years, means a philosophy under which the constitution means only what it was “originally understood” to mean when the document was ratified in the late 18th Century. “Originalist” judges claim that historical records and legal dictionaries can tell us exactly what the framing generation meant by phrases like “due process of law.”

But, as our guests discuss, the triumph of “originalism” hides a commitment to a conservative, indeed authoritarian, philosophy of judging. The “originalist” result almost always turns out to be exactly the policy that the 21st Century Right is seeking to force on the country.

Host: Garrett Epps, ACS Board of Directors, and The Washington Monthly

Guests: Victoria Nourse, Georgetown Law | Peter Shane, ACS Board of Directors and the Ohio State University Moritz College of Law

Link: Victoria Nourse's article "Reclaiming the Constitutional Text from Originalism"

Email the Show: Podcast@ACSLaw.org

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Technical production provided by Flint Stone Media