|
Abstract
|
The Supreme Court's 2022 and 2023 terms have demonstrated that its jurisprudential outlook and methodology is solidly entrenched in the "original public meaning" school of originalism. This method of interpretation, exemplified in Justice Antonin Scalia's opinion in District of Columbia v. Heller, has risen rapidly to become a dominant strand of constitutional and statutory interpretation in the United States.
With recent cases like Dobbs v. Jackson Women's Health Organization and New York Rifle and Pistol Ass'n, Inc. v. Bruen, the Court has given much more weight to historical evidence in deciding cases, almost rising to the level of binding authority. While originalism purports to be a more neutral methodology because it adheres to the so-called "original public meaning" words had to society at the time they were written, major problems arise in attempting to discern a universalizable past meaning to apply to contemporary American society.
This article argues that there was never a universalizable "original public meaning," neither at the ratification of the U.S. Constitution nor at the adoption of the postbellum amendments of the 1860s. Originalism, with its heavy emphasis on historical evidence, requires the exclusion of wide swaths of the American people from the historical record and creates an impoverished, incomplete, and inaccurate depiction of the past. Such a methodology is an insufficient basis for a school of jurisprudence and creates potential dangers for the legitimacy of the Court as an apolitical institution.
Language: en |