New originalism eschews a focus on original intent and instead concentrates on the public meaning of the Constitution. Yet, if one looks carefully at the murky methodology and dubious practices of new originalism, it is clear that its historical foundations are even shakier than that of old originalism. The new theory is little more than an intellectual shell game in which contemporary political preferences are shuffled around and made to appear part of the Constitution’s original meaning.
New originalists are dismissive of history. They argue that original meaning, as they construe it, is simply different from historical meaning. If this claim were true, then historians would have no special expertise when it comes to understanding the original meaning of the Constitution. This view is utter nonsense. Different historical methods can certainly yield different answers to the question of what the Constitution meant. Social historians might give preference to what ordinary Americans thought the Constitution meant, while legal or constitutional historians might lay greater stress on the opinions of legal and judicial elites. It might well be the case that there was no consensus in the Founding era on what a specific provision of the Constitution meant. What is clearly false is the new originalist claim that original meaning is not subject to the rules of verification that apply to all historical works.
There is an Israeli military strategy called the “fog procedure”. First used during the second intifada,...
