How originalism killed the Constitution, by Jill Lepore
Today’s must-read: A radical legal philosophy has undermined the process of constitutional evolution.

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A radical legal philosophy has undermined the process of constitutional evolution that the Founders envisioned, Jill Lepore argues in the October cover story. How did originalism kill the Constitution?

(Illustration by Tyler Comrie. Source: Nora Carol Photography / Getty)

A bushy-browed, pipe-smoking, piano-playing Antonin Scalia—Nino—the scourge of the left, knew how to work a crowd. He loved opera; he loved theater; he loved show tunes. In high school, he played the lead role in Macbeth: “I have no spur to prick the sides of my intent, but only vaulting ambition.” As clever as he was combative, Scalia, short and stocky, was known, too, for his slightly terrifying energy and for his eviscerating sense of humor. He fished and hunted: turkeys and ducks, deer and boar, alligators. He loved nothing better than a dictionary. He argued to win. He was one of the Supreme Court’s sharpest writers and among its severest critics. “It’s hard to get it right,” he’d tell his clerks, sending back their drafts; they had that engraved on a plaque. Few justices have done more to transform American jurisprudence, not only from the bench but also from the seminar table, the lecture hall, and the eerie velveteen intimacy of the television stage. He gave one speech so often that he kept its outline, scribbled on a scrap of paper, tucked in his suit pocket. The Constitution is not a living document, he’d say. “It’s dead. Dead, dead, dead!”

Two hundred and fifty years after Americans declared independence from Britain and began writing the first state constitutions, it’s not the Constitution that’s dead. It’s the idea of amending it.


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