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Justice Alito on Originalism

By Ilya Somin · Oct 5, 2026, 9:36 PM CDT

Read full article at Reason
Justice Samuel Alito (CNP/AdMedia/Sipa/Newscom) In a recent Wall Street Journal article , based on his forthcoming book on the same subject, Supreme Court Justice Samuel Alito offers his take on constitutional originalism. But in so doing, he raises more questions than compelling answers. Nonetheless, he makes a number of interesting points, about how to do originalism generally, and about specifi

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INSUFFICIENT CONTEXT
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Layer 3 · Reporting analysis

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ImageryAlito uses vivid historical imagery to frame his populist originalism, appealing to a sense of common‑folk understanding.

ContrastThe author sets up a binary between "elitist" and "populist" approaches to highlight perceived trade‑offs.

Appeal to AuthorityCiting Justice Scalia serves to bolster the argument against reviving Privileges or Immunities.

SpeculationThe author speculates on Alito’s motives without direct evidence from Alito.

Historical AnalogyThe author draws an analogy to civil‑rights precedent to argue that overturning precedent can be justified.

Context

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Missing context

The post does not provide direct excerpts from Alito’s Wall Street Journal article or his forthcoming book, limiting verification of his exact arguments. It also lacks citation of the specific Wall Street Journal piece (author, title, date) and does not present counter‑arguments from other originalists beyond brief mentions of Thomas and Gorsuch.

Important context

The author references their own 2012 law review article "Originalism and Political Ignorance" and an amicus brief filed in Obergefell, indicating a personal scholarly background that informs the critique. The discussion of precedent includes historical examples (Brown v. Board of Education) to frame the debate on reliance interests.

Opinion vs. reporting

AI analysis

The piece blends reporting (summarizing Alito’s positions, noting his votes) with extensive opinion and analysis from the author, including evaluative language (e.g., "ignores," "unpersuasive," "ironic").