Alito Defends Populist Originalism While Questioning Elite Interpretations and Precedent

Samuel Alito, citing a forthcoming work, contends that constitutional originalism must be grounded in the everyday public meaning of the 18th-century populace, likening it to discussions around a tavern hearth. He warns that relying on expert or “reasonable reader” interpretations can obscure the original public intent and may mislead on technical terms. Alito maintains that originalism rejects a right to same-sex marriage, arguing that such expectations were absent in 1868, while acknowledging that newer factual understandings can shift applications.

He opposes reviving the Privileges or Immunities Clause, fearing it would open a floodgate for varied ideological claims, and differs from fellow conservatives Clarence Thomas and Neil Gorsuch on this point. Finally, he underscores the need to heed precedent, noting reliance interests after Obergefell but questioning similar arguments used to defend Roe v. Wade.