That won’t soon go away. Originalism is based on several flawed assumptions:
1) There exists a single interpretation of the founders. Reality: there are no universally agreed nuggets passed down from our more enlightened predecessors. They clashed vigorously, even violently.
2) The founders wanted future generations to subscribe to their particular interpretations. Reality: The views of the founders are not relevant to today’s world, nor did they even anticipate they would be. GPS guided smart bombs and ICBMs weren’t even fathomed in their era.
3) There exists sufficient information to infer the views of the founders. Reality: As with any historical figures our knowledge of their views are incomplete.
4) The Supreme Court is qualified to interpret the views of the founders in their historical context. Reality: Supreme Court justices are, by and large, not historians, nor should we desire they become so.
5) Americans want a return to founding era norms. Reality: few Americans want to reinstate racial slavery.
Originalism is a thinly opaque cover that appears to transform facile and regressive policy positions into universally accepted truths. It has superficial appeal that topples under the slightest scrutiny. Let’s insist on judges who apply modern analysis to modern problems.
The Democrats Must Filibuster Neil Gorsuch – Slate