Many of the academic luminaries who pushed originalism into the mainstream of American legal thought signed an open letter denouncing Republican nominee Donald Trump, and urging Americans to vote their conscience.
Trump has used the prospect of Supreme Court vacancies to rally recalcitrant conservatives around his campaign, promising to appoint originalists to the federal bench. Originalism is an interpretative rubric which urges the interpretation of the Constitution according to its original meaning. The late Supreme Court Justice Antonin Scalia led a revival of the theory in the federal courts.
Thirty lawyers and intellectuals — among those the very first scholars and practitioners to reinvigorate originalism during its post-New Deal decline — organized as a group styled “Originalists Against Trump.” They argue Clinton judicial appointees are less dangerous to the country than four years of Trump.
“Many Americans still support Trump in the belief that he will protect the Constitution,” they wrote. “We understand that belief, but we do not share it. Trump’s long record of statements and conduct, in his campaign and in his business career, have shown him indifferent or hostile to the Constitution’s basic features—including a government of limited powers, an independent judiciary, religious liberty, freedom of speech, and due process of law.”
They also criticized the approving tones in which he sometimes speaks of Russian President Vladimir Putin and deposed Iraqi strongman Saddam Hussein, as well as his promise to turn the legal system against those critical of him in the press. (RELATED: Conservative Legal Scholars Say SCOTUS Pick Isn’t Good Incentive To Vote For Trump)
Prominent signatories to the open letter include Richard Epstein, a libertarian legal scholar with faculty appointments at the University of Chicago and New York University; Jonathan Adler, a law professor at Case Western University who orchestrated the second major court challenge to Obamacare, King v. Burwell; and Steven Calabresi, law professor at Northwestern University who founded one of the first chapters of the Federalist Society at Yale Law School with Scalia.
They are joined by a generation of proteges, a second wave of originalist savants who are filling the ranks of the nation’s law schools and think tanks to continue the work of their predecessors. These include Josh Blackman, professor at Houston College of Law; William Baude of the University of Chicago Law School; and Adam White of the Hoover Institution.
“Originalism has faced setbacks before; it has recovered,” they write of this particularly sullen political season. “Whoever wins in November, it will do so again.”
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