Bench Memos

Joseph Ellis’s Misconceived Attack on Originalism

In a woefully confused op-ed in the Washington Post, historian (and notorious fabricator) Joseph J. Ellis once again fabricates his own straw-man misconception of originalism so that he can take some ill-informed whacks.  Two quick and elementary observations:

1.  Ellis attacks the “constitutional doctrine of original intent.”  He is apparently unaware that the original-meaning approach has long been dominant among originalists and that it is the approach that Justices Scalia and Thomas advocate.  The original-meaning approach doesn’t look to the subjective intentions of the Framers, and it is thus immune from Ellis’s central attack.  (Ellis contends that Chief Justice Roberts and Justice Alito also “believe in [the doctrine of original intent], or some version of it,” but neither, I believe, has fully embraced any version of originalism.)

2.  Ellis asserts that originalism “rests on a set of implicit assumptions about the framers as a breed apart, momentarily allowed access to a set of timeless and transcendent truths.”  That’s nonsense.  As law professor Lawrence Solum has explained (and as I have attempted to show in this essay), “The core of originalism is based on common sense about the meaning of the constitutional text and the nature of law.” 

Ellis obviously doesn’t understand that the originalist approach applies not just to the original Constitution, and not just to the various amendments that have been adopted over time, but also to statutes enacted by every Congress.  In short, it’s not at all dependent on any assumption about the wisdom of any set of legislators.