Source: Law & Liberty
by Zachary Chambers
“Originalism’s position seems unassailable, with both a majority of Supreme Court justices pledging fidelity to some variant of the theory, and tremendous institutional backing within the conservative legal world through institutions like the Federalist Society Despite this dominance, a number of conservative intellectuals and academics have for years expressed deep skepticism of originalism. A 2021 article coauthored in part by Professor Hadley Arkes labels originalism a positivist theory that ‘ignores both our broader Anglo-American tradition and the influence of natural law on our nation’s founding,’ forcing judges to act as ‘technocrats focused entirely on the text, with no attention to the underlying principles that give meaning to that text.’ This is not a new critique.” (10/19/26)