The Corner

Law & the Courts

Thomas Edsall Doesn’t Know What Originalism Is

Thomas Edsall writes in the New York Times that Republican appointees to the federal bench are “armed with an originalist doctrine that enables subjective interpretation of the Constitution.” He declines to say how originalism is unique in allowing judges to interpret subjectively — anyone appointed to the bench possesses the ability to do that. In fact, originalism is unique in that it advocates an objective standard for interpreting the Constitution: What did the text mean at the time it was written? This standard stands in stark contrast to the consequentialist approach favored by Democratic appointees that turns judges into legislators.

The entire column is a mess — Edsall believes that it takes “intellectual jujitsu” not to adhere to the principle of stare decisis in every case — but it’s his casting of originalism as a boogeyman that serves as a catalyst for the train wreck.