The Problems With Originalism

The Problems With Originalism
AP Photo/Pablo Martinez Monsivais

At Judge Neil M. Gorsuch's confirmation hearing on Monday, Senator Dianne Feinstein, Democrat of California, started the ball rolling by remarking that she found his “originalist judicial philosophy to be really troubling.” Troubling it is.

Originalism is just one of the theories that Judge Gorsuch shares with the late Justice Antonin Scalia; another is its closely related cousin, textualism. Textualism says that when interpreting the Constitution, judges should confine themselves to the words of the Constitution. Originalism says that if the words are at all unclear, then judges need to consult historical sources to determine their meaning at the time of ratification, and the correct application of these words to new cases should clearly follow.

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