Opponents of originalism make much of the supposed ambiguities in the Constitution. But is the text of the document really so unclear?
It is a testament to our nation’s commitment to the rule of law that, nearly 250 years after its ratification, Americans still argue about the Constitution. And as often as we argue about the outcomes of controversial hot-button constitutional cases, we argue about the methodologies that lead judges to make their rulings.
Today originalism—the idea that constitutional meaning should be considered as being fixed at the time of enactment—is the dominant judicial philosophy, thanks in part to decades of persuasive arguments put forward by conservative and libertarian lawyers and scholars. But there are different flavors of originalism, corresponding to different understandings of “original meaning”—the framers’ intent, a provision’s “public meaning,” or its expected application, to name a few—and various liberal lawyers and politicians propose their own interpretative methods, originalist or otherwise.
Continue reading the entire piece here at The Wall Street Journal (paywall)
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Tal Fortgang is an adjunct fellow at the Manhattan Institute and a fellow at SAPIR: Ideas for a Thriving Jewish Future.
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