In this episode, Garrett Epps speaks with Victoria Nourse and Peter Shane to break down the claims of "originalism" and show how this flawed legal theory, as applied to the executive branch, has pushed our system to the brink of dictatorship.

Legal arguments on constitutional issues are dominated, more and more, by the claims of “originalist” jurisprudence. The term, originated by the conservative legal movement during the Reagan years, means a philosophy under which the constitution means only what it was “originally understood” to mean when the document was ratified in the late 18th Century. “Originalist” judges claim that historical records and legal dictionaries can tell us exactly what the Framing generation meant by phrases like “due process of law.”

But, as our guests discuss, the triumph of “originalism” hides a commitment to a conservative, indeed authoritarian, philosophy of judging. The “originalist” result almost always turns out to be exactly the policy that the 21st Century Right is seeking to force on the country.

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Today's Host: Garrett Epps, ACS Board of Directors, and The Washington Monthly

Today's Guest: Victoria Nourse of Georgetown Law

Today's Guest: Peter Shane of ACS Board of Directors, and The Ohio State University Moritz College of Law

Link: Victoria Nourse's article "Reclaiming the Constitutional Text from Originalism

Visit the Podcast Website: Broken Law Podcast

Email the Show: [email protected]

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Product

Visit the Podcast Website: Broken Law Podcast

Email the Show: [email protected]

Follow ACS on Social Media: Facebook | Instagram | Bluesky | LinkedIn | YouTube

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Broken Law: About the law, who it serves, and who it doesn’t.
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Production House: Flint Stone Media

Copyright of American Constitution Society 2025.