The Supreme Court might have to choose between power and principle

We know that elections have consequences, but we are often reminded that ideas do, too. That link between abstract ideas and real-world results could prove especially fateful on the day after the presidential election.

At stake is the idea of judicial originalism, which holds, in the words of the late Justice Antonin Scalia, that the U.S. Constitution “means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.” While this assertion has a seductive simplicity, it’s worth noting that this is simply one theory of how the courts should function. The Constitution itself never directs that judges should rule in this manner. In fact, the United States is unusual among advanced democracies in its practice of treating its constitution as a quasi-religious text whose meaning has to be divined chiefly through detailed textual analysis.

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