With a preface by Justice Samuel A. Alito Jr. and contributions from more than 30 conservative judges, the Heritage Foundation, the influential think tank that has helped shape the Trump administration’s second-term agenda, will soon publish an 800-page, clause-by-clause analysis of the Constitution.
“The Heritage Guide to the Constitution” is a kind of judicial counterpart to Project 2025, the group’s blueprint for the executive branch. The new book urges lawyers and judges to view every provision of the Constitution through the lens of originalism, which has come to dominate conservative legal thought since the Reagan years and calls for constitutional cases to be decided based on the document’s original meaning.
The book, shared with The New York Times ahead of its October publication, also serves as a showcase for potential Supreme Court nominees should President Trump have an opportunity to appoint a fourth justice. Almost every judge who has been mentioned as a possible candidate for a vacancy on the court contributed an essay or served as an adviser to the project.
The book’s 18-member “judicial advisory board” included Judges James C. Ho and Andrew S. Oldham of the U.S. Court of Appeals for the Fifth Circuit, Judge Amul R. Thapar of the Sixth Circuit, Judge Neomi Rao of the District of Columbia Circuit and Judge Patrick J. Bumatay of the Ninth Circuit. All have been named as possible nominees for the Supreme Court.
When Mr. Trump was running for president in 2016, he broke with a tradition of candidates demurring about the identity of likely picks for the court by issuing lists of possible nominees, crediting the Federalist Society and the Heritage Foundation with helping to draw them up.
Mr. Trump has since soured on the first organization. “I am so disappointed in The Federalist Society because of the bad advice they gave me on numerous Judicial Nominations,” Mr. Trump wrote on social media in May, after losing a case testing the legality of his tariffs.
But the Heritage Foundation remains in his good graces. Josh Blackman, a law professor at South Texas College of Law Houston and the book’s senior editor, said the president would do well to consult its roster of contributors.
“If you’re making a Supreme Court shortlist,” he said, “you should pick from this list.”
The Heritage Foundation, founded in 1973, has long shaped the personnel and policies of Republican administrations. In recent years, it has become more aligned with Mr. Trump’s priorities than old-school Republican ones, culminating in Project 2025, an agenda for his second administration that he disavowed as a candidate but adopted large parts of once in office.
None of the members of the book’s advisory board were appointed by Democratic presidents. Most — 15 of the 18 — were appointed by Mr. Trump.
“I made a judgment and, you know, maybe it’s a good judgment or a bad judgment, that some more progressive judges might not want to work with Heritage,” Professor Blackman said in explaining the absence of Democratic appointees. He added that “progressives tend not to like originalism.”
There have been two earlier editions of the book, in 2005 and 2014, but they were more eclectic. The new edition is not only a detailed reference work surveying text, history and tradition, but also a manifesto that seeks to establish originalism as the sole legitimate way to read the nation’s founding charter.
“It’s dramatically different from the first two editions,” said John G. Malcolm, an official of the group and the book’s executive editor. “We’ve decided to focus a lot more on originalism.”
Some of the essays suggested that over the years the Supreme Court had strayed from what the authors said was the Constitution’s original meaning.
For instance, Judge Andrew Brasher, of the 11th Circuit, writing with a former law clerk, said the right to a speedy trial was originally understood to bar only excessive pretrial detentions and did not guarantee prompt adjudication. “Modern practice and precedent deviate from the original meaning,” the essay said.
Similarly, Judge Lawrence VanDyke, of the Ninth Circuit, also writing with a former law clerk, said the Sixth Amendment was originally understood to give criminal defendants the right to hire a lawyer at their own expense and did not guarantee poor people lawyers paid by the government. That guarantee was extended to indigent defendants in 1963 in Gideon v. Wainwright. As a historical matter, the essay said, criticism of the court’s ruling in that foundational case “seems warranted.”
In addition to his scholarly work, Professor Blackman contributes provocative posts to the Volokh Conspiracy, a law blog.
On Friday, for instance, he called on Chief Justice John G. Roberts Jr. to step down, saying he had lost the confidence of the judiciary, and urged Mr. Trump to elevate Justice Brett M. Kavanaugh to chief justice. Professor Blackman has also been a frequent critic of Justice Amy Coney Barrett, writing in March that “with each passing day, Justice Barrett is demonstrating why she had no business being appointed to the Supreme Court.”
In an interview, Professor Blackman said his popular writing and his scholarship occupied different lanes. “When I’m writing sort of an advocacy piece, I’m trying to accomplish something, trying to make a point,” he said. “And for better or worse, in our ecosystem, the way you get attention is sometimes to use stronger language. There’s just no way around it.”
His scholarship, he said, was careful and deliberate.
In his preface to the book, Justice Alito welcomed the rise of originalism, calling it “a profound and beneficial change.”
In the 1960s and 1970s, he wrote, Supreme Court decisions were not based on neutral principles.
“Decisions had relied willy-nilly on the text of the constitutional provision at issue, its history, the structure of the Constitution, precedent and what amounted more or less to a view about sound public policy,” he wrote. “Why a particular recipe was selected for each case had not been explained.”
Justice Alito, the only member of the Supreme Court to contribute to the book, noted that President Richard M. Nixon had appointed four justices, three of whom joined the majority opinion in Roe v. Wade, the 1973 decision that established a constitutional right to abortion.
That decision, he wrote, “did not strictly follow anything other than the majority’s view on what represented wise public policy.”
Justice Alito wrote the majority opinion in 2022 in Dobbs v. Jackson Women’s Health Organization, which overturned Roe, relying on what he said was the original meaning of the Constitution.
Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002.
The post In New Book, Think Tank Behind Project 2025 Takes On the Constitution appeared first on New York Times.
