Saul Cornell, the Paul and Diane Guenther Chair in American History, joins the first episode of How Originalism Ate the Law: The Trick on the podcast Amicus with Dahlia Lithwick.
“Essentially what [Justice Antonin] Scalia says is preambles don’t state the purpose, they state a purpose.
He draws that from late 19th century or mid-19th century treatises, which the founders didn’t have access to. You would think if you were an originalist you would actually look at case law from the period or treatises from the period.
Preambles are very important because they are key to unlocking the meaning of the person who wrote the text. So Scalia by saying, ‘I’m going to use this 19th century rule for how you use preambles,’ is able to essentially erase it and turn the Constitution into an Etch-a-Sketch.”
