Sorry for not posting for a while.
We’ve been busy with some basement remodeling after a drainpipe broke. And then
my wife and I helped drive my sister to Wichita for her mission. She didn’t
want to drive alone, and the Church didn’t want her to either, so we split the
driving duties and kept her company. It was also a great excuse for us to visit our 49th and 50th states. We had been to all but Arkansas and Oklahoma, so now
we have hit the big 5-0. Anyway, that’s my excuse, but we’re back now, and I
thought this topic might interest some readers.
I’m no legal scholar, but I have
always found the philosophy behind originalism to be quite suspect. I subscribe
to the New York Times and read pieces from it virtually every day, but I rarely
get into the comment section of the articles. Today, however, I finally got
around to reading “The Supreme Court Is Divided in More Ways Than You’d Think,”
by J. Joel Alecia, originalist law professor at the Catholic University, published
on June 9, 2025, and I opened up the comments to see what readers had to say
about originalism. I found it quite fascinating. Here’s a sampling of the 531
comments. (I’ve corrected a couple of words [in brackets] that you might trip over but have left
the comments otherwise unedited, which took some self-restraint, believe me.)
Enjoy.
Craig M Oliner
Merion Station, Pennsylvania June
10
What does originalism say about social media use by
children?
Funes el Memorioso
Tlön, Uqbar, Orbis Tertius June
10
You l[o]st me at “originalists such as myself”. The
Constitution was written before the Industrial Revolution, when Marie
Antoinette still wore her head, and Beethoven was a pre-teen. The world has
changed, dude. So should the Constitution.
Chris
CA June
10
This is a well written and scholarly view of originalism. I
will now rebut your thesis from the cheap seats: Originalism is neither a
philosophy nor a discipline as practiced by this court. It is a tool. A tool
that is taken off the shelf when it can be used to support the Justices’
ideology and political worldview and utterly ignored when it does not support
the answer that they want to arrive at. Barrett may keep some faith with
originalist philosophy but the others just use it as window dressing when it is
convenient. Sorry.
KeninDFW
DFW June
10
This originalism is ridiculous. In my 7th grade Civics class
in the late 70s we learned the Constitution was purposely writ[t]e[n] in vague
and unspecific language to allow justices “in the future” to interpret the
document and apply it for “future” generations. Congress was tasked with
writing specific language in their statutes to address current situations.
Congress has the power to make, modify and repeal laws that are then signed by
the President, hence we have the separation of powers. Unfortunately states
have loaded up their state constitutions with outdated and obsolete laws like
you have to tie your horse to the railing before going inside the saloon which
remain and are never repealed. We need to strike originalism from our justices
and stop insisting that machine guns are just fine and dandy.
Ken Winkes
Conway, WA June
10
Seeking answers to most contemporary problems and challenges
in a document written 250 years ago makes no more sense that divining bird
entrails , consulting runes or casting dice. No modern weaponry in the Founders’
day. No atomic energy. No computers. Heck, only an inkling of electricity, and
oh, yeah, no unitary executive, and not even a White House. Who would claim
their presidential immunity decision was originalist, tho it sure was original.
Alito just makes stuff up. The conservatives, originalists or not, always
decide in favor or corporations—no
mention of them in the Constitution—over
people. Republicans in the pocket of Big Business isn’t very original either.
Dave
Buffalo NY June
10
This writer claims that simply because this court is guided
by some oddly concocted Constitutional Theory, they are immune from criticisms
of being “lawless and political.” That’s like claiming that pseudo-Scientists
working under assumptions based on The Flat Earth Theory are going to come to
objectively sound conclusions.
Slate Hardon
Cincinnati June
10
Originalism as such is the most politically opportunistic
methodology for judicial decision making, despite author’s assertion to the
contrary. The Justices’ understanding of the original intent of Constitutional
provisions always conforms to their contemporary ideological and political
positions—and sometimes even to the interests of a particular office holder. No
current judge could possibly know the “intent” of the drafters of
Constitutional provisions when the drafters themselves could not agree at the
time to a singular, uniform meaning of their words. After ratification, there
were immediate disagreements over the meaning of the Constitution—and the drafters
were still alive. Within decades of ratification, we fought a civil war over
differing views of the meaning of the Constitution. It’s convenient now for our
“orginalist” Justices that the original drafters are not around to dispute
their interpretations. But fortunately a handful of 21st century right wing
Justices uniquely know the precise intent of a squabbling bunch of 18th century
politicos with different interests and constituencies desperately trying to
reach a deal to keep the country from falling apart. Originalism is a scam.
FreewayAs
Georgia June
10
In my view doctrines of Constitutional interpretation are
less relevant than ideological orientation. The conservative Justices in
particular seem to work backwards from a decision they politically want to
arrive at and mix and match doctrinal arguments and foundational texts to get
there.
Peggy Hart
Silverton, Oregon June
10
Two things: *Originalism is not original — The Founders came out
of the British legal system which is based not on a written Constitution, but
rather on precedent. *Originalists might remember that Slave Codes were part of
the colonial and US legal systems at the time of the Constitution. Justice
Taney, in the Dred Scott Decision, refers to these Slave Codes as “special laws”
governing relations between white people and black people. Under these “special
laws,” the slave master and patrollers suffered minimal or no legal
consequences for violent abuses of black slaves. Violence was necessary to
slavery. So was immunity from the law The 14th Amendment’s “equal protection”
clause aimed to set down a foundation of one legal system instead of the “original”
two. Professor Eric Foner, scholar of Reconstruction, argues that the Civil War
Amendments to the Constitution constitute part of the original document. The
originalist jurist must decide this: Is the 14th Amendment’s “equal protection”
— no more slave laws, no more immunity from prosecution — more, or less, original than colonial and
extra-Constitutional Slave Codes from the 18th century? The Supreme Court has
given prosecutorial immunity to the US President, without mentioning its
historical precedent: the freedom of slave masters and patrollers to mistreat
Taney’s “people of African descent”. This is a false freedom, because it only
exists if the rights of others are extinguished and due process is ignored.
John Pace
Memphis June
10
I’m waiting to hear how “originalists” came up with the
justification for giving the president immunity for official acts. This
nonsense is not only not found in the Constitution — it was deliberately NOT granted to the Executive in
Article II — it
actually is contradicted by the Federalist Papers and the determined spirit to
avoid enabling the president to acquire the power of a king. It has been clear
for decades that originalism is a convenient excuse for taking any action
desired in pursuit of a political agenda.
Maurie Beck
Encinitas June
9
What does Originalism remind you of? Creationism and
Fundamentalist Christianity. Originalism is a return to the original
constitution, just like Fundamentalist Christians want the country to return to
the true Christianity, which is only reflected in the words of the Bible. Our
law would revert to Biblical Law, which sanctions stoning to death for all
sorts of behavior that is now considered normal an[d] not criminal.
Unfortunately, a return to real Constitutional Originalism would dispense with
all but the Ten Amendments. In other words, the 13th and 14th Amendments that
outlawed slavery and gave Black people full citizenship should be overturned to
deliver the country back to the vision of the Founding Fathers. Of course, a
return to Biblical Law would also restore slavery as a god given right.
DAC
Canada June
9
Funny how originalists turned a blind eye to “a well
regulated militia”, found that corporations are people, that money is
equivalent to speech and that women can be forced to bear children. Originalism
pretends to be principled but it is a malleable tool that is deployed to
enshrine the power and privileges of wealth.
Carol
Petaluma, CA June
9
It occurs to me that the shapers of the Constitution would
be rather horrified at this concept of ‘originalism.’ These men were bold for
their time, envisioning governance by the people, and discarding the strictures
of a monarchy. And yet, here we are 237 years post ratification and
intellectually lazy, backwards thinkers on the Supreme Court cannot meet the
challenges of the century we actually live in.
Welby Warner
St. Thomas, VI June
9
This theory of “originalism” is an invented one that can be
applied any way the originalist desires, and here’s why. The declaration of
independence stated as a presumption that all men are created equal to get the
world on the side of the USA in its fight against the British. Having obtained
worldwide approval for their cause, they wrote a constitution that violated the
premise of the declaration of independence and classified certain persons as
less than what the declaration said they were. Inevitably, the conflict between
the original premise and the constitution had to surface, and this was
corrected by the amendments to the constitution. The idea of originalism
presumes that the writers of the constitution got it right the first time, and
if this was correct, there would be no need for amendments. So, is the goal of
originalists to take us back to the original constitution, and abandon the
amendments? This view would erase the concept of progress, the idea that later
generations can build on what was learned before, and break new grounds in
knowledge and human development. Is the premise of originalism equivalent to
the idea that progress is impossible? If originalists believed that, they
should never be using computers since these were unknown at the time of the
writing of the constitution.
Al Orin
NYC June
9
Originalism is such arrant nonsense, but it is a fiction
that has served as a clever disguise for straight-out conservatism. It is
impossible to know what each legislator of each of the 13 state legislatures
were thinking when they voted to ratify the constitution, let alone the
thinking of every legislator in each of the 37 states that later ratified the
constitution. And it is impossible to know what all of the legislators were all
thinking when they ratified the bill of rights and the later amendments, particularly
the 14th amendment, which modified the constitution’s original text and
meanings. This is in addition to the nonsensical idea that today’s legislation
should be forever enchained by the conceptions of late 18th century — before the invention of
electricity, mass communications, the modern business corporation, etc. and
before the discovery of the atom, evolution, and DNA.
A.D.
California June
9
Originalism is evil sophistry. “Let’s interpret a document
intended to last generations based on bad historical research and the imagined
specificity of an era in which white men owned black people. It is
inconceivable that the drafters or the those who approved the
Constitution thought that 250 years later its ideals, written in broad sweeping
language, would be eviscerated in the name of their own historical prejudices.
Trisha
Michigan June
9
The constitution was written by people who did not want a
king. But it seems like that is what we now have under the current president.
Given to us by a so-called originalist group of justices. All of your arguments
are trumped by that counter argument. Your article is thereby null and void.
Jamie Alderiso
Palm Beach County Florida June
9
“This Supreme Court, contrary to accusations that it is
lawless and political, is more committed to a particular constitutional theory
than any Supreme Court has been since at least the 1940s.” With all due
respect, is this supposed to serve as some mollification to the Court’s
critics? Any individual who purports the Court’s neutrality in interpreting the
law is woefully delusional. And let’s talk some about originalism. The
ontological conception of the idea under law is inane. Yes, it is inane even in
its conception. Why would a text written in the late 18th century, albeit one
that was written to serve as a guiding light for the sanctity of our nation
going forth in administering governance and the rule of law, be inappropriately
scrutinized to ascertain the true, original meaning of its writers? Originalism
is a smokescreen to hide the Right’s intentions of reshaping the larger
culture. The Judiciary’s power is obscene and the most undemocratic of our
three branches of government. The constitution doesn’t guarantee a right to an
abortion? Correct, abortions aren’t mentioned in the text. You know what else
isn’t? The right to board an aircraft. I wonder why. Originalism is a
smokescreen to ferment a potent agenda of social conservatism, and it is the
exact reason there is no trust in the courts from the American people.
Brett
Sydney [Australia, I presume] June
9
Seriously what is wrong with Americans. Even (apparently)
intelligent people can say with a straight face that the laws of the land
should be based on what a few white males thought hundreds of years ago. How
can what they thought then be valid and applicable to a world that is
completely different?
Matt
Iowa June
9
“...judges ought to interpret the Constitution according to
the meaning it had when it was ratified.” When the Constitution was ratified,
judicial review of congressional legislation was not a function of the Supreme
Court or any other court. Perhaps the originalists have forgotten that. Well,
it’s pretty much a moot point now, as constitutional government appears to be
moribund, if not already deceased.
Arno
Berkeley CA June
9
Such window dressing must make for wonderful conversations
at faculty events, and given your employer and political orientation, you are
likely to remain faculty. Huzzah. You know in your heart it’s just window
dressing. What, exactly, did the founders feel the correct level of regulation
for high capacity magazines may have been? Shall we plumb Jefferson’s heart to
divine what he makes of AI? Originalism is and ever has been an attempt to
legislate through court action, just as you persecute others for doing. You
just want to legislate a return to the eighteenth century.
Marc
CT June
9
There’s no such thing as originalism, it’s just the justices
opinion on how something should be interpreted and provides cover for unpopular
decisions. In essence it’s one big rationalization to try and provide a
construct for a certain idealogy.
Patrick Deaton
St. Louis June
9
Originalism is hogwash. Read Erin Chemerinsky’s book Worse
Than Nothing. It is a devastating critique of originalism.
Martin
Chicago June
9
Originalism is just another name for a seance conducted by
charlatans channeling a bunch of dead people’s “thoughts”.
