It coincided with “Founders Chic,” all the thick biographies of the founding generation. It resonated with conservative religious practice - a form of constitutional fundamentalism and literalism. Soon it became a comfortable talking point. It was a wildly controversial idea first proposed in a big way in a speech by Attorney General Edwin Meese III and then defended by Robert Bork in his doomed nomination for the Supreme Court. Supposedly it would take the politics out of judging. The insistence that “original intent” or “original public meaning” is the only legitimate way to read the Constitution came as part of the conservative reaction to expanding rights in the 1960s and 1970s. ![]() It was such a notorious disaster that the approach was shelved for a century. Dred Scott was the first major originalist ruling, claiming to find its defense of slavery and its assertion that even free Black people could not be citizens in the original intent of the founders. As Chief Justice John Marshall wrote, “We must never forget that it is a constitution we are expounding.” A great charter would enable a growing nation to meet new challenges. Certainly it is not what the founding generation had in mind. The notion that the Constitution should be read as frozen in time is a relatively new invention. Liberals must find their voice and put forward a better way to explain the Constitution and how it works - or we can expect more weeks like this one every June as we wait for oracles in robes to consult the vapors of history and tell us our fates. Both rely on a radical approach to how to read the Constitution: making major social policy by purporting to use “originalism.” Together they show how flawed that can be. Last week’s Supreme Court rulings on abortion and guns shook the country. Click here to receive it every week in your inbox. Attend the Brennan Legacy Awards Dinner.Advance Constitutional Change Show / hide. ![]()
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