Khiara M. Bridges, UC Berkeley School of Law, has published the review essay Originalism Without History in the Yale Law Journal:
Originalism, the Supreme Court’s ascendant theory of constitutional interpretation, claims to dive deep into the historical archives to divine the meaning of the Constitution. However, one of the greatest ironies of originalism is that while it claims to be intensely interested in history, it eschews much of the past in practice. Originalists often rely on the assumption that only a thin slice of history matters. The archives before and after a particular moment—namely the Founding and the few years surrounding the ratification of the Reconstruction Amendments—are, as a matter of constitutional interpretation, regarded as irrelevant. Moreover, even during the narrow band of years germane to originalist analyses, the histories created by the vast majority of historical actors—that is, nonelites—are typically treated as immaterial to the interpretive endeavor. In this way, originalism suppresses much of history through its veneration of history.
Fascinatingly, there is a similarity between originalism and the assault on history currently taking place in the United States more broadly—an assault that was first framed as a struggle against “Critical Race Theory,” or “CRT,” but has since evolved into a struggle against diversity, equity, and inclusion, or DEI. Like originalism, the fight against “CRT” and DEI suppresses history—particularly, marginalized people’s histories—through its veneration of a mythologized version of this country’s past. This Review excavates the twin processes of historical suppression and veneration occurring in the judicial sphere and the larger political sphere in which the judiciary is embedded, and it situates the histories of constitutional transformation provided in Jill Lepore’s We the People and Akhil Reed Amar’s Born Equal within the contemporary war on history.
--Dan Ernst
