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With this approach, for example, the term “ex post facto laws” likely refers only to retroactive criminal laws, and not to all retroactive laws.Īlthough critics of originalism make much of these intraoriginalist squabbles, the reality is all of the above approaches usually lead to the same answer. Still other scholars claim the Constitution is written in legal language and should be interpreted with its original “legal” meaning. Others say it’s the understanding of a reasonable, well-educated reader.
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Some originalists argue it’s the meaning as understood by those who ratified the Constitution in the various state conventions, or the public that elected those ratifiers. But what, exactly, is the Constitution’s “original meaning”? Originalism is the idea that we should interpret the Constitution with its original meaning. Each time, misconceptions about this theory of constitutional interpretation have swirled: Isn’t originalism self-defeating because the Founders weren’t originalist? Don’t originalists ignore the amendments written after 1789? Do originalists think the Constitution applies only to horse-drawn carriages and muskets?Īs a constitutional law professor, the author of “ A Debt Against the Living: An Introduction to Originalism,” and an originalist, I’d like to answer some frequently asked questions about originalism – and to debunk some of the myths. Originalism has featured prominently in each of the last three Supreme Court confirmation battles – those of Neil Gorsuch in 2017, Brett Kavanaugh in 2018 and now Amy Coney Barrett.