Posted for Ardiola Medi #11
When Roe v Wade was overturned through the Dobbs v. Jackson ruling, Originalism started to make headlines. The philosophical method of interpreting the constitution played a large part in the decision that would delegitimize the precedent set for the right to privacy. Six out of nine of the current Supreme Court Justices, being Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson, are proponents of this method. Although espoused by the more conservative justices, the method of Originalism has been used by liberal judges for progressive means and seems to be a standard for constitutional interpretation. So, what is Originalism?
I will explain the philosophy of Originalism through former Supreme Court Justice Antonin Scalia, who made the method of interpretation popular. He says that "The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted." As an originalist one would keep what the founding fathers intended when crafting the constitution in mind. For Originalist interpreters to understand what the founding fathers intended they are often required to view text like debates in the Constitutional Convention or the Federalist Papers. Some consider how people of the time period interpreted the constitutional for further insight. An example of Scalia using this form of interpretation is in District of Columbia v. Heller. Scalia conceded that the Second Amendment protected the right to possess firearms without being in service to a militia. He came to this conclusion by Originalist means arguing that ordinary citizens of the time understood and practiced the constitutional right in this way.
At first glance, Originalism seems like a valid way of interpreting the constitution, the philosophy supposedly would produce objective, non-politically charged rulings. Recently though it seems as if Originalism has been co-opted by Conservatives to push their own politics in terms of the right to privacy, Thomas intending to go after gay marriage next. Critics of Originalism propose that relying on the intent of the founding fathers inhibits progress. It is argued that beliefs the founding fathers may have had about women and people of color would not align with modern sentiments towards the civil rights of these groups. This critique does not hold up with those that believe the meaning of the constitution should not be misconstrued or cherrypicked to promote political values. What I believe is a more valid critique of Originalism is that it requires interpreters to be historians, and they tend to be mediocre ones at best. This is one of the reasons the rulings seem to lean conservative, they are interpreting history with bias.
Justice Alito's conceding opening in Dobbs v. Jackson is an example of this. He says, "the right (to abortion) is neither deeply rooted in the nation's history nor an essential component of "ordered liberty". He is quite wrong. From the time settlers first arrived abortion was legal. Abortions before "quickening" were openly advertised and commonly performed at the time the Constitution was adopted. It was only in the mid 19th century that states began passing laws that made abortion illegal. One of the reasons included fear that the population would be dominated by the children of newly arriving immigrants, whose birth rates were higher than those of "native" Anglo-Saxon women.
I do believe a good thing about the invasion of this form of radical originalism is that it brings critics to think about the process of amending the constitution. If you cannot possibly interpret the constitution outside the intent of its framers, then amend it. It’s a very hard process but when we cannot possibly escape our original intent it’s the best means to ensure our rights. Otherwise, promoting a pragmatic approach to interpreting the constitution along the standards of originalism is a good way to combat radical forms of originalism.
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