Originalism is bogus law. Originalism is not a valid approach to understanding the US Constitution. It uses a combination of linguistics and mysticism (magical thinking) in the service of reactionary ideology. It goes back to 1789 and chooses an interpretation of our documents that was not even the one used in our actual governance.
No one can channel the founders without a time machine, and we cannot travel in time. Pretending you have a deep understanding of an era from four centuries ago is disingenuous. Our Supremes are as immersed in the 21 st century as our nation is. Eras have a “zeitgeist” that involves every sphere of human endeavor and behavior. Our understanding of the past can approach but never experience the reality.
Studying each word of the US Constitution, parsing its meaning, and combining the words into sentences and paragraphs still leaves sections of the Constitution open to differing interpretations. I doubt the intention was to have only one incontrovertible, written in stone, set of absolute rules for running our new nation. Many things in our documents are attempts to correct the injustices and harms that caused people to leave England and Europe.
Rigid conservatives from the Reagan era and beyond joined with Evangelicals and Catholics (Read Shadow Networks by Anne Nelson) to invent laws that are in perfect opposition to the Critical Race Theory ideas that these folks now go on about. Critical race theory has roots in actual historical events. Originalism has roots in some airy-fairy reasoning about what our founders intended.
We do have the things our founders wrote in the Federalist Papers which gives us views into the controversies of the age, and there were divisions. Rebels in Southern states wanted to protect slavery because they believed it formed the basis of their economy which would not thrive without slaves. There were some slaves in the North, but northerners did not set up our democracy/republic to protect slavery. Many founders saw the disconnect between such a seminal statement as “all men are created equal” and keeping humans as slaves. The foundations of the Civil War were already present at our beginnings.
Those who claim to be Originalists and who ignore the issue of slavery are blinding themselves to our true roots. Not only did our founders hedge on slavery, but they also subscribed to the idea that women are subservient to men. Women are not mentioned by our founders. They were not mentioned because they were not seen as equals and they could not vote, but they were counted in populations for purposes of representation. Black women were counted as black men were as 3/5 of a person for purposes of representation only.
I have always been proud of our Declaration of Independence and of our US Constitution. For the times it was transformative, and it was admired and copied by other nations. There are no perfect governments because there are no perfect people, but a nation should always begin with an idealism that guides reality. Our documents have the tools to use when leaders try to stray from the pathways of our republic/democracy. These tools depend on those we elect to use them when it is appropriate.
When one group in Congress refuses to use the tools we were given in the Constitution, when they remove all the guardrails that offer the checks and balances that protect our republic, then that group is the one that is hollowing out our Constitution. (Read How Democracies Die by Levitsky and Ziblatt) Trump was impeached twice because he broke his oath of office, but the right-wing refused to convict. Eight Republican senators and 121 Republican representatives tried to stop the peaceful transfer of powers by defying ceremony and refusing to certify the results of the Electoral College on January 6, 2021. Republicans who were obviously shocked by the insurrection of January 6, 2021, refused to apply the Fourteenth Amendment, clearly relevant to these events. Tools are useless if you won’t/can’t use them.
Republicans have used plenty of creative approaches to find ways to break laws, but they have secretly and not so secretively left it to the states to defy Constitutional law and then used a state’s rights argument to back up state laws that challenge federal law. Abortion has been one example of creative strategy on display with “trap” laws, changing deadlines for fetal viability, terrorism, citizen vigilantes, packing the Supreme Court with “originalists.” An obstruction campaign has given scope to right-wing invention. We see it on the issue of guns, the issue of immigration, and we wonder why upholding our laws has not unloosed an equivalent array of out-ot-the-box thinking on the left.
But Democratic Party shock and awe is not the same as Dem admiration or approval. These assaults suggest that there is an end game, an overall result that will deliver up to the right-wing control of the US government and to an authoritarian leader of the madman persuasion who uses fear of reprisals to control a state that once stood for freedom. Abortion, long contested, may seem like a right that resides awkwardly in the US Constitution, but it is the tip of a giant iceberg of other rights that also stand to be taken away, a few only recently granted. We can’t let the right-wing make up a new branch of the law and then use it to wage war on human rights and our democracy/republic. Originalism cannot be allowed as a legal rationale for decisions in our courts and especially in our Supreme Court. Back to the drawing board right-wingers. Even creative strategies must conform to what is discernible by everyone and not just a fringe group of extremists.
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