Originalism 101 (with Dahlia Lithwick)
2Digest
Dahlia Lithwick, a legal journalist and host of Slate's podcast Amicus, joins Pete Barara to discuss the doctrine of originalism and its application in recent Supreme Court decisions. Lithwick argues that originalism is a relatively new doctrine that emerged in the 1970s and 1980s, and that it is not a true reflection of historical practice. She criticizes the use of originalism in cases like Bruin, where the court relied on historical analogies to justify its decision. Lithwick argues that originalism is a flawed methodology that can be used to justify any outcome, and that it is not a reliable guide to constitutional interpretation. She also points out that originalism often ignores the power imbalances that existed at the time of the founding, and that it can be used to perpetuate those imbalances. Lithwick concludes by discussing the Rahimi case, in which the Supreme Court upheld a law that temporarily disarms individuals with domestic violence restraining orders. She argues that this decision demonstrates the flaws of originalism, as there is no historical precedent for such a law. Lithwick suggests that the court is moving away from originalism and towards a more principled approach to constitutional interpretation.
Outlines
Introduction and Sponsors
This Chapter introduces the topic of the podcast, which is the Supreme Court's use of originalism and living constitutionalism in its decisions. It also includes advertisements for HubSpot and Atlassian.
Originalism and Living Constitutionalism
This Chapter discusses the two competing doctrines of originalism and living constitutionalism, which are used to interpret the Constitution. It introduces Dahlia Lithwick, a legal journalist and host of Slate's podcast Amicus, who will be discussing these doctrines.
The Need for Constitutional Interpretation
This Chapter explores the reasons why methods of interpretation are necessary for the Constitution. It explains that the Constitution was written with broad language, and that judges need to interpret its meaning in light of changing times and circumstances.
The Origins of Originalism
This Chapter delves into the origins of originalism, a method of constitutional interpretation that focuses on the original meaning of the words in the Constitution. It reveals that originalism is not a doctrine that dates back to the founding, but rather emerged in the 1970s and 1980s.
Originalism and Presidential Immunity
This Chapter examines the originalist argument for presidential immunity, specifically in the case of Donald Trump. It highlights the absurdity of using historical anecdotes, like a supposed statement by Ben Franklin, to justify absolute presidential immunity.
Keywords
Originalism
Originalism is a method of constitutional interpretation that emphasizes the original meaning of the words in the Constitution, as understood by the framers at the time of its ratification. It seeks to constrain judicial discretion by adhering to the original intent or public meaning of the text. Originalism has gained prominence in recent years, particularly among conservative justices on the Supreme Court. It is often contrasted with living constitutionalism, which allows for the interpretation of the Constitution to evolve with changing societal values and circumstances.
Living Constitutionalism
Living constitutionalism is a method of constitutional interpretation that emphasizes the evolving nature of the Constitution and its ability to adapt to changing societal values and circumstances. It recognizes that the meaning of the Constitution can change over time, and that judges should interpret it in light of contemporary understandings of justice and equality. Living constitutionalism is often contrasted with originalism, which seeks to adhere to the original intent or public meaning of the text.
Constitutional Interpretation
Constitutional interpretation refers to the process of determining the meaning and application of the Constitution. It involves analyzing the text, historical context, and relevant legal precedents to understand the intent of the framers and the evolving principles of constitutional law. Different methods of constitutional interpretation, such as originalism and living constitutionalism, have been developed to guide this process.
Supreme Court
The Supreme Court of the United States is the highest federal court in the country. It is responsible for interpreting the Constitution and federal laws, and its decisions have a profound impact on American society. The Supreme Court consists of nine justices, who are appointed for life by the President and confirmed by the Senate. The court's decisions are often highly controversial, and they can shape the course of American law and politics.
Rahimi Case
The Rahimi case, decided by the Supreme Court in June 2023, involved a challenge to a New York law that temporarily disarms individuals with domestic violence restraining orders. The court upheld the law, rejecting the argument that it violated the Second Amendment right to bear arms. The case is significant because it demonstrates the court's willingness to uphold gun control laws, even in the face of strong arguments from gun rights advocates.
Bruin Case
The Bruin case, decided by the Supreme Court in June 2022, involved a challenge to a New York law that restricted the carrying of concealed handguns in public. The court struck down the law, ruling that it violated the Second Amendment right to bear arms. The Bruin case is significant because it expanded the scope of the Second Amendment and made it more difficult for states to regulate firearms.
Presidential Immunity
Presidential immunity is a legal doctrine that protects the President from certain legal actions, such as criminal prosecution, while in office. The scope of presidential immunity is a matter of ongoing debate, and the Supreme Court has not yet definitively ruled on the issue. The doctrine is based on the principle of separation of powers, which seeks to protect the President from undue interference by the judiciary.
Ben Franklin
Benjamin Franklin was one of the Founding Fathers of the United States and a prominent figure in the American Revolution. He was a scientist, inventor, writer, and diplomat, and he played a key role in drafting the Declaration of Independence and the Constitution. Franklin is known for his wit, wisdom, and contributions to American history and culture.
14th Amendment
The Fourteenth Amendment to the United States Constitution, ratified in 1868, addresses citizenship rights and equal protection under the law. It is one of the most important amendments in American history, as it guarantees equal protection and due process of law to all citizens, regardless of race, color, or previous condition of servitude. The Fourteenth Amendment has been used to advance civil rights and liberties, and it continues to be a source of legal debate and litigation.
Dobs Case
The Dobbs case, decided by the Supreme Court in June 2022, overturned Roe v. Wade, the landmark 1973 decision that established a constitutional right to abortion. The Dobbs decision has had a profound impact on abortion access in the United States, as it has allowed states to ban or severely restrict abortion. The case is highly controversial, and it has sparked widespread protests and legal challenges.
Q&A
What is originalism and how does it differ from living constitutionalism?
Originalism is a method of constitutional interpretation that focuses on the original meaning of the words in the Constitution, as understood by the framers at the time of its ratification. Living constitutionalism, on the other hand, allows for the interpretation of the Constitution to evolve with changing societal values and circumstances.
Why does Dahlia Lithwick argue that originalism is not a true reflection of historical practice?
Lithwick argues that originalism is a relatively new doctrine that emerged in the 1970s and 1980s, and that it is not a true reflection of historical practice. She points out that judges throughout history have used a variety of interpretive methods, and that originalism was not a dominant approach until recently.
How does the Rahimi case demonstrate the flaws of originalism?
The Rahimi case involved a challenge to a New York law that temporarily disarms individuals with domestic violence restraining orders. The court upheld the law, rejecting the argument that it violated the Second Amendment right to bear arms. Lithwick argues that this decision demonstrates the flaws of originalism, as there is no historical precedent for such a law. She suggests that the court is moving away from originalism and towards a more principled approach to constitutional interpretation.
What is the originalist argument for presidential immunity?
The originalist argument for presidential immunity is based on the idea that the framers intended for the President to have absolute immunity from criminal prosecution. This argument is often based on historical anecdotes, such as a supposed statement by Ben Franklin, which are often taken out of context or misrepresented.
Why does Dahlia Lithwick believe that the Supreme Court's use of originalism is problematic?
Lithwick believes that the Supreme Court's use of originalism is problematic because it can be used to justify any outcome, and that it is not a reliable guide to constitutional interpretation. She also points out that originalism often ignores the power imbalances that existed at the time of the founding, and that it can be used to perpetuate those imbalances.
Show Notes
Dahlia Lithwick is a lawyer, journalist and best-selling author. She is also the host of Slate’s podcast, Amicus, about the law and the Supreme Court. Dahlia joins Preet to discuss the different methods of constitutional interpretation and how one doctrine in particular has taken over this Supreme Court.
Stay Tuned in Brief is presented by CAFE and the Vox Media Podcast Network. Please write to us with your thoughts and questions at letters@cafe.com, or leave a voicemail at 669-247-7338.
For analysis of recent legal news, join the CAFE Insider community. Head to cafe.com/insider to join for just $1 for the first month.
Learn more about your ad choices. Visit podcastchoices.com/adchoices
Table of contents
United States
