Whose Constitution Is It, Anyway?: Originalism vs. The Living Constitution

Photo by Anthony Garand on Unsplash

EPISODE SUMMARY

In this episode, the hosts discuss the Supreme Court’s upcoming decisions on the Constitutionality of Affirmative Action and the power of state legislatures to draw Congressional district lines without judicial review. Originalists say let’s figure out what the words used in the Constitution meant at the time. Proponents of a Living Constitution say let’s figure out what makes sense today.

A FEW KEY TAKEAWAYS FROM THIS EPISODE

• What it means to be an originalist vs. a texualist
• All about independent state legislature theory before the Supreme Court, its texualist roots, and its potential damage to our democracy
• Affirmative action will likely end as we know it in 2023 at the hands of the real activist judges

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INDEPENDENT STATE LEGISLATURE CASE

Bipartisan Policy Center

“Independent State Legislature Theory Undermines Elections Principles.”

https://bipartisanpolicy.org/report/independent-state-legislature-theory/

SCOTUSblog.com

“Court seems unwilling to embrace broad version of “independent state legislature” theory.”

https://www.scotusblog.com/2022/12/court-seems-unwilling-to-embrace-broad-version-of-independent-state-legislature-theory/

NPR

“Supreme Court to hear controversial election-law case.”

https://www.npr.org/2022/12/07/1140465909/supreme-court-independent-state-legislature-theory

AFFIRMATIVE ACTION CASES

NPR

“Can race play a role in college admissions? The Supreme Court hears the arguments.”

https://www.npr.org/2022/10/31/1131789230/supreme-court-affirmative-action-harvard-unc

SCOTUSblog.com

“In cases challenging affirmative action, court will confront wide-ranging arguments on history, diversity, and the role of race in America.”

Thomas Jefferson on whether the American Constitution is binding on those who were not born at the time it was signed and agreed to (1789)

https://oll.libertyfund.org/quote/thomas-jefferson-on-whether-the-american-constitution-is-binding-on-those-who-were-not-born-at-the-time-it-was-signed-and-agreed-to-1789

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OTHER EPISODES OF INTEREST

Affirmative Action: How We Got To Now