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Noah Feldman

Supreme Court ‘Originalists’ Are Flying a False Flag

The new conservative majority promised to heed the intent of the Constitution’s framers to restrain judicial overreach. Instead, it cherry-picks history to rationalize its activism.

Cardboard originalists.

Cardboard originalists.

Photographer: Photographer: Emilie Richardson/Bloomberg

Something surprising is missing from the conservative opinions the Supreme Court issued at the end of its recent term on abortion, religion and gun rights: originalism.

The court’s new majority did not decide these era-defining cases using the idea, associated with the late Justice Antonin Scalia and invoked by many of the current justices in confirmation hearings,  articles and other forums, that it should apply the Constitution by asking what its words meant to the people who ratified it. Instead, the conservative majority applied what it described in several key opinions as a series of “historical” tests concerning the way the American and English legal traditions approached the issues under review.