You may enjoy my latest (and short!) podcast episode, Originalism and its Discontents, which compares:
- the Fifth Circuit’s May 2022 opinion in Jarkesy v. SEC, which held that the Seventh Amendment’s right to civil jury trial extends to an SEC enforcement action (although the SEC did not exist in 1791), and
- the draft Supreme Court majority opinion in Dobbs (which held that the Fourteenth Amendment did not protect an abortion right in 1868, although the vast majority of women could neither vote nor own property at that time).
The episode concludes that historical analogies, made in the name of “originalism,” may not be a faithful application of that technique for constitutional reasoning, when the historical context differs substantially from our own.
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