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The Two Phases of Constitutional Originalism, From Reagan to Today

For half a century, "originalists" have cloaked politics in the imagined—and ultimately unknowable—intentions of the Founding Fathers.

Bill Blum, legal commentator at Blum’s Law, identifies two distinct phases of Constitutional originalism, the legal theory that posits the Constitution should be understood in the present as closely as possible to the way hit was understood at the time of its writing in the eighteenth century. 

Blum calls the first phase "originalism 1.0" and traces its roots to early proponents such as the conservative legal scholar Robert Bork. 

“At the beginning of the Reagan era, they argued that to understand the terms of the constitution, you look at the intent of the founders. That was proven to be unworkable, because we really couldn't ascertain the intent of the founders. Then a new kind of originalism arose—originalism 2.0—which says we should interpret the Constitution according to the meanings that the words and phrases had at the time [of its writing],” Blum says.

Blum notes the Constitution does not include any text suggesting that modern Justices should refrain from interpreting its meaning through a contemporary lens.

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“There's nothing in the Constitution itself that says that our understanding of these basic principles should not evolve in accordance with changing circumstances,” Blum says.

Originalism, he says, is merely “result-oriented methodology dressed up as objectivity”—a disguise for policies and choices that have little to do with the Constitution, and everything to do with politics. 

Watch the full interview: