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Perspective: The Difficulty With Constitutional Originalism

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The news cycle is fickle. Last week the crisis du jour was free speech with Elon Musk’s move to buy Twitter and take it private. This week, it’s the leaked draft of a Supreme Court opinion overturning fifty years of precedent protecting a woman’s right to choose.

Despite differences, there is an important similarity here. In both cases, what we see being played out are the difficulties with Constitutional originalism.

With Musk, who is a self-professed “free speech absolutist,” there is an effort to apply protections initially developed for the printing press to the technology of the Internet and data-driven, algorithmic platforms. But social media, in both substance and form, are not just a digital printing press. And you would think a tech-innovator like Elon Musk would know the difference.

With the opinion penned by Justice Alito, the court seems unwilling to recognize and affirm any individual right that is not explicitly mentioned by name in the text of the original document. Yet many rights currently enjoyed by citizens of the United States do not meet this standard.

Accommodating existing statutes to new social and technological conditions is part of what constitutional law is all about. But strict adherence to the letter of the document—especially when it is centuries old—is a kind of orthodoxy that risks holding the future hostage to the past.

Maintaining the integrity of our shared values is essential but doing so means ensuring that they can scale to the opportunities and challenges of the present.

I'm David Gunkel, and that's my perspective.

Northern Illinois University professor and author