Whenever progressives are upset at the outcomes of Supreme Court decisions these days, somebody takes up the task of slapping a new coat of paint on old complaints about originalism and presenting them as if they were a new insight. Historian Joshua Zeitz, who is not a lawyer, carries out this mission in Politico, terming the Bruen and Dobbs decisions on the Second Amendment and abortion as “faux ‘originalism.’” His argument is that judges are institutionally incapable of accurately interpreting historical sources.
Unsurprisingly, Zeitz offers no alternative theory of how judges should read the Constitution in a way that is both democratically legitimate and within their professional competence. What other basis is there to impose the will and judgment of nine lawyers upon the American people at large? Moreover, he doesn’t even get the history right; his op-ed merely repackages bad historical arguments raised by the litigants in Bruen and Dobbs and debunked in the careful and scholarly opinions of the Court.
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