Originalism Is A Psyop
Sources
Solum, Lawrence B. What is Originalism? The Evolution of Contemporary Originalist Theory. Georgetown University Law Center. 2011. https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2362&context=facpub
Berman, Mitchell N. Originalism Is Bunk. New York University Law Review. 2009. https://nyulawreview.org/wp-content/uploads/2018/08/NYULawReview-84-1-Berman.pdf
Somin, Ilya. The Borkean Dilemma: Robert Bork and the Tension between Originalism and Democracy. University of Chicago Law Review. 2017. https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1022&context=uclrev_online
Inman, William. The Myth of Originalism. Georgia State University. 2018. https://news.gsu.edu/research-magazine/fall2018/the-myth-of-originalism
Apex (“Supreme”) Courts. Judiciaries Worldwide. Accessed October 9, 2026. https://judiciariesworldwide.fjc.gov/apex-supreme-courts
Elving, Ron. A Brief History of Nixon’s ‘Saturday Night Massacre.’ NPR. October 21, 2028. https://www.npr.org/2018/10/21/659279158/a-brief-history-of-nixons-saturday-night-massacre
Leonhardt, David. "Wreak yourself upon the world". Yale Alumni Magazine. 2024. https://www.yalealumnimagazine.com/articles/5798-wreak-yourself-upon-the-world
George, Robert P. Robert Bork and “Slouching Toward Gomorrah”. First Things. December 21, 2012. https://firstthings.com/robert-bork-and-slouching-toward-gomorrah/
Transcript
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On the night of October 20th, 1973, US Attorney General Elliot Richardson faced an impossible predicament. The Nixon White House was in a tail spin. Richardson was only a few months on the job, his predecessor having resigned in disgrace for his role helping to cover up a break in at the Democratic National Committee headquarters at the Watergate Complex on behalf of Nixon’s re-election campaign. Richardson had selected a special prosecutor, Archibald Cox, to conduct an investigation into the Watergate Scandal, to uncover what happened, who did it, and who knew about it. A few months prior, a Senate committee investigating the Watergate Scandal discovered a bombshell: the oval office was bugged, and those tapes could implicate the president of the United States. Nixon refused to cooperate, had spent weeks attempting to get out of the eventual subpoena Congress issued to force him to hand over his tapes. At the end of his rope, a cornered animal, late in the evening on Saturday, October 20th, Nixon called on his Attorney General, Elliot Richardson, to fire Archibald Cox, the man he had just hired to investigate the Watergate scandal. The request alone indicated how desperate Nixon was to keep whatever was in those tapes a secret. So Richardson had a choice: do what his boss, Richard Nixon, the man who had appointed him, was ordering him to do, likely throwing a wrench into the investigation of a major White House scandal, or jeopardize his position as the most powerful lawyer in the country and refuse. He refused. Elliot Richardson, on that Saturday night, chose to tender his resignation instead of complying with unethical orders from a disgraced, likely guilty president. Next in line at the Department of Justice was Richardson’s deputy attorney general William Ruckelshaus. That same night, Nixon called on Ruckelshaus to fire the special prosecutor, since Richardson had refused. Ruckelshaus, put in the same position as Richardson, refused as well. Nixon fired him on the spot. Third in line was the US Solicitor General, the lawyer in charge of arguing cases on behalf of the United States before the Supreme Court, a man by the name of Robert Bork. Bork was quickly named acting attorney general, the two men ahead of him in line having been terminated, and, on that same night, Nixon made his third order, this time to Bork, to fire special prosecutor Archibald Cox. Bork, faced with the same dilemma as Richardson and Ruckelshaus, and allegedly promised a nomination to the Supreme Court for his compliance, made the opposite choice. He agreed and fired Archibald Cox that very same evening. The next morning, the world awoke to the news of what was to be called The Saturday Night Massacre. Capitol Hill was slammed with over 50,000 telegrams from across the country calling for Nixon’s impeachment, and Nixon’s attempt to squash the investigation into him only made the fervor over those tapes that much louder. Impeachment hearings began the following spring, and by early August, less than 10 months after the Saturday Night Massacre, Nixon resigned.
Nixon never got the chance to fulfill the promise he made to Bork about the Supreme Court nomination. And when his predecessor, Gerald Ford, was given the chance to nominate a justice, he chose John Paul Stevens over Bork. Even Bork’s position as acting Attorney General only lasted six months, and then he was back to his solicitor general role, a role he filled until 1977, after which he went back to the Yale teaching job he held before his stint in government. The president wouldn’t come calling again until 1981, when President Reagan nominated Bork to a position on the United States Court of Appeals for the DC circuit, a prestigious role that is often the holding pen for future Supreme Court nominees. He was joined on the court a few months later by Reagan appointee Antonin Scalia. When Reagan was given his first shot at nominating a Supreme Court justice in 1986, Bork was once again passed over in favor of his colleague Antonin Scalia, nearly ten years his junior and technically with less experience on the bench.
Finally, Bork’s time came a year later, in 1987, when Reagan nominated him to replace retiring justice Lewis Powell on the US Supreme Court. The only problem was that, by that time, Democrats controlled Congress, and Bork’s reputation preceded him. Not only had he proved himself willing to kowtow to the authority of the president no matter what ethics or morals might come into play with his willingness to fire Archibald Cox 14 years prior, but in his years as a professor and academic at Yale Law School, Bork had also made a name for himself as a far right conservative nut job who espoused deeply questionable ideals that made him an outlier. Bork, from a seat on the Supreme Court, wouldn’t just help enshrine Reagan’s most far-right ideals into the law of the land, Bork was, in many ways, the leading architect of those ideals in the first place. Bork’s nomination to the Supreme Court was ultimately an abject failure, one of the worst defeats on record when it comes to failed Supreme Court nominations. Today, Bork is mainly remembered for his role in the Saturday Night Massacre and his failed Supreme Court nomination, but what those Senators who rejected him for his far right beliefs failed to appreciate at the time was that Bork’s ideas had already embedded themselves into the wider public discourse, and that the most sinister aspects of his far right ideology were already snaking their way through every level of government and civic life in America.
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Following Bork’s nomination to the Supreme Court, Senator Ted Kennedy condemned him on the floor of the Senate, saying quote “Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy. ... The damage that President Reagan will do through this nomination, if it is not rejected by the Senate, could live on far beyond the end of his presidential term. President Reagan is still our president. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice.”
The problem is that the damage Bork wrought through the justice system took hold despite the Senate’s best efforts. There is a lot to criticize about Robert Bork’s ideas. He supported the South’s ability to impose poll taxes. He opposed the Civil Rights Act. He disagreed with the idea that the 14th Amendment protects privacy rights, any privacy rights at all. He was deeply against anti-trust regulation being used to protect consumers and promote competition. He thought small businesses and businesses that WEREN’T successful at monopolizing were simply weak, inefficient, and bad at economics and therefore didn’t deserve saving. That it was actually in the best interests of consumers to let those weak businesses wither away and keep the government from interfering in their demise. Bork wrote a number of books. In 1996, he published a book through the far right conservative think tank the American Enterprise Institute. The book was called “Slouching Towards Gomorrah: Modern Liberalism and American Decline.” Its dust jacket declares: “The ideological triumph of liberalism among American elites, far from bringing the individual and social enlightenment it promised, has produced unprecedented decay. The principal victims of this decay are the poorest and most vulnerable among us, those most in need of a healthy culture. Bork courageously and boldly states these truths. A judge as wise as Solomon has become a prophet as powerful as Isaiah.”
Bork intentionally wrote his books not as academic prose but in a way that was accessible to average, non-academic readers. During his time as a Yale Law professor, he adopted the personal motto “wreak yourself upon the world.” Yuck. And so he took his ideas and he developed relationships with conservative journalists and he wrote op-eds and magazine articles to promote his books to the general public. Over and over again, as you sift through the works of Robert Bork, starting in the early 1970s and beyond, you see the same exact language that is now infecting every level of the United States government, that was imprinted onto the pages of the Heritage Foundation’s Project 2025. They are ideas in reaction to the success of the New Deal in bringing about American prosperity through big government. They are ideas in reaction to the Supreme Court led by Chief Justice Earl Warren, which took an expansive view especially of the 14th Amendment and its right to privacy, creating precedent that gave us the protection to choose who we love, to choose whether we use contraception, to choose to get an abortion, and more. The seeds of liberty and equality that the Warren court planted have been the ire of conservative lawyers and legal scholars since Earl Warren penned the unanimous decision in Brown v. Board of Education in 1954. And the backlash is most apparent in one of Robert Bork’s most prominent inventions: modern day originalism. What was once a fringe legal concept invented by Bork and a few other conservative legal scholars high in their ivory academic towers in the 1970s has become so mainstream and accepted that I personally assumed that originalism had been around since the founding. So imagine my surprise when I discovered that originalism in its modern iteration was a reactionary invention by a bunch of conservatives a few decades ago. It is now so popular and accepted as a theory of constitutional interpretation that Supreme Court Justice Samuel Alito just proudly published a book of his writing and speeches titled “So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country.”
But let’s take a step back, what is originalism? At its core, originalism is a type of constitutional interpretation that says that judges must enforce whatever the original intent of the constitution, when it was written, was. But WHO’s original intent? That has changed over the years. Scholars and judges have focused, variously, on the framers’ intent–so what did the people who wrote this document mean by each of these individual words and these ideas generally? Then there’s the ratifiers’ intent–so the people who voted to ratify this constitution, what did THEY understand the words in this document to mean, at the time of its ratification. And then there’s the more general original public meaning originalism, which is what is most commonly practiced today, which is an examination of what the general public would have understood the words to mean at the time the constitution was written or the amendments to the constitution were written. And the reason why we need a way to interpret the text of the constitution is because it is not very clearly written. There was no way for the framers of the constitution to foretell everything that was going to happen that the document would need to govern, so most of its provisions are intentionally vague and open to interpretation. And originalists believe that a judge’s role in interpreting what the law says should be guided principally by what the text meant at the time it was written, as opposed to “living constitutionalists” who believe that the constitution is a document that should be interpreted based on changing norms, laws, practices, and time.
While Robert Bork is credited with having popularized early originalism in the 1970s, Justice Antonin Scalia is the most well-known originalist in the Supreme Court’s history, again he didn’t take the bench until the 1980s, and despite the obscurity of the idea of “originalism” before the 1980s, in a few short decades the court has become dominated by these self-proclaimed originalists, including Judges Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Neil Gorsuch. These justices and their supporters will claim that originalism offers a means by which the judges can interpret the constitution while removing their own personal opinions and biases from the equation, and that honoring what the framers would have wanted is the best way to ensure strict, unbiased adherence to the constitution. It’s a really convenient way for conservatives to appeal to conservative ideals about the past and how great it was, all while making themselves seem like the unbiased, rational arbiter of the One True Law, in direct opposition to living constitutionalists who they decry as activist judges improperly opposing their unelected will upon the masses.
Let’s talk about all the problems with these arguments. First, and to me I think most glaringly, the very premise of originalism rests on a lie. And the lie originalists are convinced of, or at least try to convince us of, is that there is some way to deduce the One True Intent or One True Meaning of words at the time they were written. Unfortunately that is impossible short of the original writers writing down every possible scenario and how to interpret these exact words in that exact scenario, over and over ad nauseum. Especially when you’re dealing with the constitution or even amendments or legislation, the very nature of the beast is that it is a collaborative thing. And thank god for that. This isn’t a single king writing demands of the people, these are judges attempting to interpret the product of a collaborative experience, one in which, necessarily, people with opposing viewpoints came together and agreed, often half-heartedly, on legislation. What they meant by things, what they really thought, differs depending on who you ask, how you ask it, and even what point in their lives and intellectual development you ask them. What a word meant in 1787 differs depending on who you asked then. There is no single way to deduce the one true meaning of words, no amount of historical digging and research will uncover one singular truth in that way. Not to mention the fact that most of the time, Supreme Court justices and the clerks who do the research for them are not historians. They do not have the expertise to deduce singular truths from the historical record, and I’d venture a guess that most historians would also tell you that’s not possible.
So while Samuel Alito or Antonin Scalia or indeed Robert Bork might have wanted you to believe that there is some way to find the unadulterated truth of what a string of words meant at the time they were written, that is never possible. The “truth” that these originalist justices get to from their historical sleuthing is going to be colored by their own beliefs and values and opinions. Because their biases are going to color what they choose to include and what they choose to leave out and the way they choose to categorize the history they claim to be the purveyors of truth about. That’s true of anyone writing about history ever, and to believe otherwise, that there is a way for a person to write objectively about history without their lived experiences and beliefs and opinions shaping their interpretation of history, is incredibly ignorant. And yet fully half of the Supreme Court wants you to think that they know how to objectively determine history well enough to apply the “original” meaning of constitutional text to modern day issues like cell phone searches and medication abortion. Read any major Supreme Court opinion that relies on history as a means of justifying the opinion and you will see one set of historical facts cherry picked by the majority to justify their decision and another set of historical facts cherry picked by the dissent to justify their dissent. All of the individual facts might be individually true, and yet it is their arrangement in the mind of the judge that determines how that judge falls in their opinion on the matter, almost like they value certain facts over others or are using their own personal ethics and reason to color their opinion on the matter.
Further enhancing my argument that originalism is made up as a tool for far right extremists is the fact that the very people who so strongly advocate for originalism to the point of writing books declaring themselves as such, to doing speaking tours around the country advocating for originalism, those very same judges will conveniently ignore the original intent or fail to consider it at all in decisions where originalism wouldn’t support their opinion. Originalist judges frequently make decisions without consulting the original meaning of the words written by people from 250 years ago. And, conversely, categorically liberal justices are happy to point to evidence of original intent and meaning of the constitution if it supports their opinion.
But it is conservative justices, supported by conservative think tanks like Bork’s American Enterprise Institute, like the Federalist Society, like the Heritage Foundation, and supported by conservative politicians who benefit from those think tanks and the big business interests that benefit from a heavily deregulated government, ALL of them benefit from the continued lie of “originalism.” That the Constitution is a sacred cow to be venerated at the expense of progress, that what the original founders who wrote it thought about the world should be more important than the living breathing people who make up a supposed democracy today.
Because that is the central contradiction in originalism, which one scholar called The Borkean Dilemma: despite the fact that many of these conservatives espouse the ideals of democracy, especially in relation to US aggression abroad, they just are jealous because of our freedoms, we’re spreading our freedom and democracy across the globe, etc., despite the fact that originalists tout democracy til they’re blue in the face, originalism is inherently anti-democratic. And to be an ardent originalist means to reject some central ideals of democracy.
Many of the founders of the United States of America were deeply critical of democracy. True democracy, the kind by and for the people, where everyone gets a say either directly or indirectly through their democratically elected representatives. When the Constitution was originally written, the house of representatives was the ONLY body that was directly elected by the people, and “the people” were limited to wealthy white men. Many of the framers of the constitution were deeply skeptical of the ability of the unwashed masses to govern themselves, especially women and enslaved people. To enforce the original meaning of the constitution, then, is to enforce a world in which black people can be enslaved and women can be oppressed. To enforce the original meaning of the constitution is to enforce a document that was written and ratified without the consent of over half the population. To enforce the original meaning of the constitution is to enforce a document that was adopted by a process that would not be recognized as democratic under any modern definition of the term.
And even IF the constitution were passed by a majority of the population and written in concert with men and women and enslaved people and in the most democratic way possible, it is still undemocratic to enforce a document written 250 years ago in the way it would have been enforced 250 years ago when all the people who participated in that democratic process are dead and buried and without consulting the very alive and active members of the current democracy today. No matter how you look at it, originalism is a tool made up a few decades ago by a group of conservatives that were mad about progress and regulation and needed some way to justify taking away that progress and consolidating power back in the hands of wealthy white men.
Robert Bork died of heart failure at the age of 85 in 2012, just a few years shy of having those dreams realized in Donald Trump, and especially Trump 2.0. What Trump and his goons have brought to the Supreme Court and to the federal government as a whole has enshrined the antidemocratic principles of originalism in the constitution and Supreme Court precedent for generations to come. And undoing this legacy will take the work of decades. If nothing else, Trump has given us the gift of laying bare just how deeply fucked up the entire system is, and growing calls for Supreme Court reform offer a promising reprieve from all of this bullshit.
Now, first and foremost, we need to get money out of politics, we need to create more robust campaign finance laws and we need a constitutional amendment that clarifies that the First Amendment does not protect money as a form of speech. Until we do that, there will be no branch of the federal government that is genuinely democratic and representative of the will of the people. Any Supreme Court reform would be premised on the idea that unelected judges should not be able to write the law, that it should be the Congress that ultimately has control over the laws of the United States because they are the closest approximation of the will of the people. That will not be true until we get money out of politics.
But if we were to actually have a Congress that is representative of the will of the people, they should pass Supreme Court reform that takes power away from the Supreme Court. This unelected group of untouchables should not be the ones writing our laws, and yes I think that includes even the progressive justices. They have proven themselves too corruptible. And no judge is capable of being truly neutral, so they should not be given the veneer of ultimate neutrality and power. Okay first there should be term limits for Supreme Court justices of 18 years, staggered so that each president gets the same number of nominees. This would remove the incentive of picking the youngest possible person so they’re on the bench the longest and it would remove the partisan back and forth that has delayed and blocked Supreme Court nominations or attempted to pressure justices into retiring during the “right” administration. Second, we need to expand the court. Many similar countries have much larger Supreme Court benches. Denmark has 19. Germany has 152. The UK has 12. Those with larger sized Supreme Courts often randomly assign smaller groups of justices to each case. So instead of all 15 justices hearing a case, for example, a panel of 3 would hear each case, allowing for more cases to be heard and protecting against any one justice fucking shit up in every single case. We already do this for appellate courts, it would not be hard to apply this to the Supreme Court.
And Congress needs to write a strong code of ethics that is enforceable against the Supreme Court. It should bar acceptance of lavish gifts, including travel and private jet rides, it should bar owning individual stocks, it should have a strict set of requirements for recusal, it should bar political activities for justices and their immediate family members, and it should bar justices from speaking tours and book deals so they cannot profit off their position of power. If they want to write a book they have to do it in retirement. You should not be able to become a millionaire because of your role as a Supreme Court justice. And Congress should pass a law that allows for any decision by the Supreme Court to be overridden by a super majority of the Congress. It should be Congress who gets the ultimate say about the law, as the closest representation of the will of the people, and not an unelected body of power hungry judges. Other countries do this, including Canada. The US should, too. Congress absolutely has the power to do this, there is nothing in the constitution that gives the Court the power that it currently has today. In fact, the Supreme Court’s power to interpret the constitution and the law in the first place is a power made up BY THE SUPREME COURT ITSELF, but that’s a subject for another day.
The point is, I’m fucking sick and tired of listening to these old dorks on the Supreme Court yammer on about their originalism as though it’s some enlightened, well-established method of constitutional interpretation and not what it really is: a right wing psyop used to convince the masses that the Supreme Court is legitimate and that its justices are capable of objectively determining the One True Word of a constitution written by a bunch of old dorks 250 years ago who were racist misogynistic pigs who would have burned me at the stake for saying so.
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