America tussles over a newly fashionable constitutional theory
“Originalism” is pushing the law to the right. Could it be a tool for progressives?
In 1987, the last time the Senate voted to reject a president’s pick for the Supreme Court, a constitutional theory seemingly went down with the nominee. Robert Bork, Ronald Reagan’s ill-fated choice, told senators that judges should be guided not by their own lights but by the intentions of those who drafted the constitution. To read values into it that the framers “did not put there”, he said (referring to liberal rulings of the 1960s and 1970s, among others), is to “deprive the people of their liberty”. Roe v Wade, and rulings such as that protecting a right to contraception, were wrong or even “pernicious”: they had nothing to do with the true meaning of the constitution.
This article appeared in the United States section of the print edition under the headline “History test”
United States August 20th 2022
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