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UC Law Constitutional Quarterly

Abstract

By 2024, a majority of the Justices of the Supreme Court had expressed the view that to be legitimate, constitutional adjudication must be based on the original meaning of the Constitution’s text. Anything else, these Justices have argued, is illegitimate judicial policymaking. Yet, in what were likely the two most critical and high-profile cases decided in 2024, the Court, including its avowedly originalist Members, made no use of originalism. In the first case, the Court faced the question whether a State could bar President Trump from running for President under Section 3 of the Fourteenth Amendment. In the second, the Court faced the question whether President Trump enjoyed immunity from criminal liability for an alleged conspiracy to overturn President Biden’s victory in the 2020 election. In both cases, a supposedly originalist Court abandoned originalism altogether.

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