‘It Is Deeply Destabilizing’: Lithwick on Using Originalism to ‘Twist the Constitution’

RUSH TRANSCRIPT:
CAPEHART: “Let’s talk about your slate piece on originalism because it’s part of a larger series on how the legal theory is basically holding our country hostage. You write quote, no system of law that relies on stability, predictability and consistency can function when history means merely whatever five amateur historians decided means at any given moment. How have the conservative justices has used originalism to twist the Constitution so far?”
Lithwick: “There’s two parts. One is we don’t quite know what originalism means anymore when it was kind of invented or really flapped as a great legal idea in the 1980s. It meant original public meaning, it meant original intent of what the framers wanted the Constitution to say. That became too tricky because multiple framers wanted different things then it becomes original public meaning, the understanders of the Constitution believed. Now we are in this weird weird sort of text and history moment where we are trying to decide and that’s why they keep pulling out dusty dictionaries. We are going to find a book around until we find a dictionary definition we like. It’s not even a sort of stable test, but I think to your main question the problem that we are having with originalism is it’s a little bit like that back to the future car where it depends where you send yourself back in history. This week alone when the Supreme Court thankfully upheld the CFPB in the way it was funded we had an originalist decision by Justice Thomas saying the CFPB is funded constitutionally, we had an originalist by Elena Kagan saying this is what recent history would demand and we had an originalist to send by justices Alito’s engorge. It depends on when you spin the history wheel and where you get back to. In addition to rejecting everything that has happened since the framing, it also means you just pick your own historical moment and that is the outcome that you get. That’s not how we do constitutional law. It is deeply destabilizing.”