Episode 5: The Threat of "Originalism"
07/06/21 • 43 min
In this episode, Garrett Epps speaks with Victoria Nourse and Peter Shane to break down the claims of "originalism" and show how this flawed legal theory, as applied to the executive branch, has pushed our system to the brink of dictatorship.
Legal arguments on constitutional issues are dominated, more and more, by the claims of “originalist” jurisprudence. The term, originated by the conservative legal movement during the Reagan years, means a philosophy under which the constitution means only what it was “originally understood” to mean when the document was ratified in the late 18th Century. “Originalist” judges claim that historical records and legal dictionaries can tell us exactly what the Framing generation meant by phrases like “due process of law.”
But, as our guests discuss, the triumph of “originalism” hides a commitment to a conservative, indeed authoritarian, philosophy of judging. The “originalist” result almost always turns out to be exactly the policy that the 21st Century Right is seeking to force on the country.
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Join the Progressive Legal Movement Today: ACSLaw.org
Today's Host: Garrett Epps, ACS Board of Directors, and The Washington Monthly
Today's Guest: Victoria Nourse of Georgetown Law
Today's Guest: Peter Shane of ACS Board of Directors, and The Ohio State University Moritz College of Law
Link: Victoria Nourse's article "Reclaiming the Constitutional Text from Originalism
Visit the Podcast Website: Broken Law Podcast
Email the Show: [email protected]
Follow ACS on Social Media: Facebook | Instagram | Twitter | LinkedIn | YouTube
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Production House: Flint Stone Media
Copyright of American Constitution Society 2021.
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Broken Law: About the law, who it serves, and who it doesn’t.
-----------------
Production House: Flint Stone Media
Copyright of American Constitution Society 2025.
In this episode, Garrett Epps speaks with Victoria Nourse and Peter Shane to break down the claims of "originalism" and show how this flawed legal theory, as applied to the executive branch, has pushed our system to the brink of dictatorship.
Legal arguments on constitutional issues are dominated, more and more, by the claims of “originalist” jurisprudence. The term, originated by the conservative legal movement during the Reagan years, means a philosophy under which the constitution means only what it was “originally understood” to mean when the document was ratified in the late 18th Century. “Originalist” judges claim that historical records and legal dictionaries can tell us exactly what the Framing generation meant by phrases like “due process of law.”
But, as our guests discuss, the triumph of “originalism” hides a commitment to a conservative, indeed authoritarian, philosophy of judging. The “originalist” result almost always turns out to be exactly the policy that the 21st Century Right is seeking to force on the country.
-----------------
Join the Progressive Legal Movement Today: ACSLaw.org
Today's Host: Garrett Epps, ACS Board of Directors, and The Washington Monthly
Today's Guest: Victoria Nourse of Georgetown Law
Today's Guest: Peter Shane of ACS Board of Directors, and The Ohio State University Moritz College of Law
Link: Victoria Nourse's article "Reclaiming the Constitutional Text from Originalism
Visit the Podcast Website: Broken Law Podcast
Email the Show: [email protected]
Follow ACS on Social Media: Facebook | Instagram | Twitter | LinkedIn | YouTube
-----------------
Production House: Flint Stone Media
Copyright of American Constitution Society 2021.
-----------------
Broken Law: About the law, who it serves, and who it doesn’t.
-----------------
Production House: Flint Stone Media
Copyright of American Constitution Society 2025.
Previous Episode
Episode 4: The Separation of Powers versus DOJ Subpoenas
The New York Times recently published breaking news about how former President Trump's DOJ seized computer and phone records of democratic lawmakers and their staff. We talk with Andy Wright about why this revelation is so concerning and what should happen to reassert the separation of powers. This is part of Broken Law's "Rapid Response" series.
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Join the Progressive Legal Movement Today: ACSLaw.org
Today's Host: Jeanne Hruska, ACS Senior Advisor for Communications and Strategy
Today's Guest: Andy Wright of Just Security | Follow Andy on Social Media (@AndyMcCanse): Twitter, Instagram
Link: Hunting Leaks, Trump Officials Focused on Democrats in Congress
Visit the Podcast Website: Broken Law Podcast
Email the Show: [email protected]
Follow ACS on Social Media: Facebook | Instagram | Twitter | LinkedIn | YouTube
Follow Your Show Hosts on Twitter: Russ Feingold (@RussFeingold) | Jeanne Hruska (@Jeanne_Hruska)
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Production House: Flint Stone Media
Copyright of American Constitution Society 2021.
-----------------
Broken Law: About the law, who it serves, and who it doesn’t.
-----------------
Production House: Flint Stone Media
Copyright of American Constitution Society 2025.
Next Episode
Episode 6: The Supreme Court vs Voting Rights
The U.S. Supreme Court dealt a major blow to voting rights in its recent 6-3 decision in Brnovich v. DNC. The Court's conservative majority upheld two Arizona voter suppression laws and gutted a key provision of the Voting Rights Act. Join Lindsay Langholz and Kat Calvin for a discussion about the impact of this decision and the Court's previous decision in Shelby County v. Holder. They discuss where the fight to protect voting rights goes from here and what listeners can do in their local communities.
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Join the Progressive Legal Movement Today: ACSLaw.org
Today's Host: Lindsay Langholz, ACS Director of Policy and Program
Today's Guest: Kat Calvin of Spread the Vote
Link: Supreme Court's decision in Brnovich v. DNC
Link: ACS's 2020-2021 Supreme Court Review Program
Visit the Podcast Website: Broken Law Podcast
Email the Show: [email protected]
Follow ACS on Social Media: Facebook | Instagram | Twitter | LinkedIn | YouTube
-----------------
Production House: Flint Stone Media
Copyright of American Constitution Society 2021.
-----------------
Broken Law: About the law, who it serves, and who it doesn’t.
-----------------
Production House: Flint Stone Media
Copyright of American Constitution Society 2025.
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