Originalism and Originalism

Much ink will be spilled over the Supreme Court’s use of history in resolving cases this term about the Appropriations Clause, possession of firearms by dangerous people, and the SEC’s internal courts. One key point in Jarkesy is the extent to which a word, used in the 1790s, has the same general meaning today. As the below quote illustrates, “fraud is fraud” oversimplifies the Supreme Court’s holding – but not by much. “Fraud” in today’s commercial law means pretty much what it did in the 1790s. Other words, such as “economy,” are not so easily transported through time, and that reality calls for caution in seeing Jarkesy as providing broad support for some other “originalist” ideas.