Washington Monthly - September/October 2024 - 123

The Origin
of Specious
Emerging from a well-funded conservative
academic network, judicial " originalism " -
the faddish theory that the thinking of the
dead can be understood and should bind
the living-is now the Supreme Court's main
tool for overturning precedent and furthering
its anti-democratic goals. Three new books
explain how that theory can be toppled.
By Garrett Epps
O
riginalism, the school of constitutional interpretation currently modish
among conservative lawyers and judges, is not so much an idea as a legalindustrial
complex divided into three parts-the academic, the jurisprudential, and
the political. In its first part, originalism is an academic pursuit, one that a large
number of law scholars have embraced with gusto. A search of legal databases revealed
that at least 600 papers have been published on this topic since Ronald Reagan's
attorney general, Edwin Meese, proclaimed it as dogma in 1985-more scholarship
than any living creature should have to read, and enough that anyone who
criticizes its tenets can always be accused of not knowing the literature.
If, however, originalism were no more than an academic fad, like quoting Roland
Barthes or Michel Foucault, we the people would not need to concern ourselves overmuch
with it. But the second branch of originalism is its use by judges as a welldeveloped
set of rhetorical tropes by which conservative judges justify their decisions,
particularly those that overturn established precedent or further antidemocratic
goals. This branch is something far more consequential.
The third strand seeks to maintain public support for conservative judges in general,
and for the current nakedly partisan Supreme Court supermajority in particular,
by claims of fidelity to something called, variously, " original intent, " " original understanding, "
or " original public meaning, " which to nonlawyers tends to be viewed as
the legacy of the nation's Founding Fathers.
This third aspect of originalism-the claim that Americans must accept it as the
only legitimate way to divine the meaning of constitutional text-is in many ways
the most important. Its role is to overawe the opposition: You who criticize do not
oppose us, the Court Donald Trump assembled by banana republic trickery; you oppose
James Madison, Thomas Jefferson, Alexander Hamilton, and all the secular gods of our
civic religion.
The authors of the three books under review-one, Stephen Breyer, a retired Supreme
Court justice; the second, Erwin Chemerinsky, dean of the University of California
Berkeley School of Law; and the third, Madiba K. Dennie, a prolific legal commentator
and former counsel at New York University's progressive Brennan Center
The Originalism Trap: How
Extremists Stole the Constitution
and How We the People Can Take
It Back
by Madiba K. Dennie
Random House, 273 pp.
Washington Monthly 123
Reading the Constitution: Why I
Chose Pragmatism, Not Textualism
by Stephen Breyer
Simon & Schuster, 368 pp.
Worse Than Nothing: The
Dangerous Fallacy of Originalism
by Erwin Chemerinsky
Yale University Press, 248 pp.

Washington Monthly - September/October 2024

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