This is part of How Originalism Ate the Law, a Slate series about the legal theory that ruined everything.

America is being led astray by a small handful of folks who are drunk-driving on originalism—and not in a funny Marx Brothers, spin-around-in-circles-and-all-fall-down sort of way. No, it’s in a children-murdered-in-their-classrooms, women-hemorrhaging-in-parking-lots, environmental-and-health-regulations-destroyed kind of way. And that’s because the whole nation is currently lashed to a small, stupid, perpetually changing theory of legal interpretation variously known as “originalism,” or “textualism,” or “original public meaning,” or “history and tradition.” A theory that is—unless you were born in the 1990s—younger than you are.

Whatever the current flavor, originalism and its ever-growing progeny hold that judges and justices should ignore every interpretive methodology judges once used to understand a legal text in favor of free-floating feelings about history: What do we think the drafters of the text intended? What do we wish they had intended? What did the readers of contemporaneous public documents understand that text to mean? What did random dictionaries of the time reflect about … words? What—as cited by a lawyer for former President Donald Trump in arguing recently that presidents can occasionally order political assassinations without facing criminal consequences—did Benjamin Franklin announce at the Constitutional Convention? And also, how did the crowd react?

As John Sauer, that Trump lawyer, put it in a court filing: “The Framers viewed the prosecution of the Chief Executive as a radical innovation to be treated with great caution. Benjamin Franklin stated at the Constitutional Convention: ‘History furnishes one example of a first Magistrate being formally brought to public Justice. Everybody cried out ag[ain]st this as unconstitutional.’ ” He cited the same piece of historical proof at the argument: “I would quote from what Benjamin Franklin said at the Constitutional Convention, which I think reflects best the Founders’ original understanding and intent here, which is, at the Constitutional Convention.” Call it, perhaps, “Standing O Originalism.” History demands absolute presidential immunity. Why? Because history shows that Ben Franklin said a thing and the crowd went wild.

Here is the thing: Most Americans are well aware that the MAGA supermajority on the current Supreme Court is drunk on something. They know that the result in the Dobbs decision that overturned Roe v. Wade was rooted in a view of constitutional history that came from a time in which women had no vote and were property, to boot. They know that the gun violence epidemic is unfixable because the Supreme Court can’t or won’t discern the difference between arming the general populace with “smoothbore, muzzle-loaded, and powder-and-ramrod muskets” and assault weapons. Most Americans are by now aware that, as professor Melissa Murray has put it, “History is messy. It’s not straightforward or fair. It’s not made by most.” They know that a commitment to living in the 21st century while in legal thrall to the 18th is bizarre on its best days and lethal on its worst days. Indeed, were they allowed to vote on it, most Americans would wholeheartedly reject a........

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