Law Talk With Epstein, Yoo & Cooke The Big Beautiful Originalism Debate
Nov 20, 2025
Join legal scholars John Yoo and Richard Epstein as they dive deep into the heart of originalism! Yoo passionately defends original public meaning and the legitimacy grounded in ratification, while Epstein critiques strict originalism, emphasizing how historical practices can shape constitutional interpretation. They tackle contentious topics like immigration policies and the scope of Article I courts, debating how long-standing customs can influence and even override textual meanings. It's a lively and thought-provoking discussion that challenges conventions!
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Originalism Centers On Ratifiers' Understanding
- Originalism interprets constitutional words by asking what ratifiers understood them to mean at adoption.
- John Yoo argues legitimacy rests on consent of those who ratified the text, not present-day preferences.
Prescription As An Alternative Source Of Legitimacy
- Richard Epstein argues many modern institutions lack original-text support but were legitimated by long practice.
- He invokes prescription and long use as an alternative source of constitutional authority.
Original Ratification Excluded Black Franchise
- Richard Epstein recounts that the 14th Amendment passage ensured blacks did not receive the franchise.
- He calls Minor v. Happersett an originalist ruling that was later effectively overruled by practice.
