Windsor, Shelby County, and the Demise of Originalism: A Personal Account

ACS is pleased to distribute “Windsor, Shelby County, and the Demise of Originalism: A Personal Account,” by Dawn Johnsen, the Walter W. Foskett Professor of Law at Indiana University Maurer School of Law. In this Issue Brief, Johnsen examines the Court’s rejection of a methodology that “seeks to interpret the Constitution with reference only to the text and the original meaning of the Framers defined at the most specific level of meaning at the time of the provision’s adoption.” Johnsen contends that this approach, most strongly identified with Justice Scalia on the Court, the late Robert Bork in academia, and President Reagan’s Attorney General Edwin Meese in politics and government, is “utterly irreconcilable with Windsor and Shelby County,” the Court’s recent decisions striking down provisions of the Defense of Marriage Act and the Voting Rights Act. As she explains, “Windsor [] reflects not only constitutional change in the direction of more expansive judicial protection of equal protection and due process, but also fidelity to a mainstream approach to interpreting the Constitution that considers a range of sources and methods and allows for the consideration of evolving social norms and constitutional understandings.”