Originalism: Why is the US Constitution being held hostage in 1788?
Reading Time: 6 minutes Whenever the deeply conservative ideology of “originalism” versus “living constitutionalism” is raised, we should remind ourselves of the sordid history of American slavery that the US Constitution once purposefully accommodated. More on that later. Because five current relig
Whenever the deeply conservative ideology of “originalism” versus “living constitutionalism” is raised, we should remind ourselves of the sordid history of American slavery that the US Constitution once purposefully accommodated.
More on that later.
Because five current religiously devout US Supreme Court justices—a majority—are widely considered “originalists,” a closer consideration of this reactionary ideology has become more imperative.
Many Americans warily wondered how such backward-looking and other-worldly beliefs would translate into formal legal opinions of the newly conservative-super-majority Court.
They didn’t have to wait long to find out.
The Court this June 24 overturned its earlier landmark Roe v Wade precedent (1973), which proclaimed abortion legal throughout the nation. In twin decisions upholding Mississippi’s draconian abortion statute in Dobbs v. Jackson Women’s Health Organization, and overturning
This June 24, the Court ended federal legality of abortion.
With these rulings, the Court effectively left the decision to individual states rather than the federal government whether each would allow or disallow abortion.
The linkage of originalism and US slavery is that when the Constitution was ratified in 1788, when slavery expansively existed in the American colonies, it was utterly silent about women and slaves. After Dobbs was upheld in 2022, discarding federal abortion rights, women understood their inalienable rights were again being ignored, while blacks have never stopped thinking that.
On the bicentennial of the Constitution’s final ratification in 1988, Thurgood Marshall, the first African-American justice on the US Supreme Court, fairly noted that the foundational American blueprint was “defective from the start.”
In an essay on the Gilder Lehrman Institute of American History website, Steven Mintz wrote that,
[Marshall] pointed out that the framers [of the Constitution] had left out a majority of Americans when they wrote the phrase, “We the People.” While some members of the Constitutional Convention voiced “eloquent objections” to slavery, Marshall said they “consented to a document which laid a foundation for the tragic events which were to follow.
By “we,” he was particularly referencing the rights of slaves, but also women, ignored in the Constitution’s text, which incongruously enshrined the fundamental idea that “all men are created equal.” In other words, Marshall implied, the Founding Fathers did not consider adult slaves of any gender and women to be “men” due the equal rights and privileges of Americans the Constitution presumably promises.
Marshall and Brennan demonstrably were proponents of “living constitutionalism,” which understands the essential realty that societies constantly evolve, and that interpretation and applications of nations’ foundational documents must flexibly accommodate that change as consensus morality and necessity require.
Indeed, it wasn’t until the 1920’s that women were granted suffrage, the right to vote, with ratification of the 19th Amendment, and not until 1964 with the landmark Civil Rights Act that African-Americans were formally granted the full, equal rights due all Americans, and in with the Voting Rights Act of 1965 (which has since been legislatively crippled).
Unsurprisingly, the concept of constitutional “originalism” springs from the same murky, wishful well as religious fundamentalism.
But both women’s and blacks’ rights are still works in progress, as invisible biases remain that were already pre-existing against both when the Constitution was written and revised over the centuries.
Constitutional “originalism” aims to reconfigure the modern American mindset to resemble more what it was in 1788, by giving undo credence to whatever the Founders may have intended in the far-distant past.
The doctrine aims to not allow interpretation and application of the Constitution to evolve with society and American attitudes but to a large degree to remain frozen in colonial time.
Unsurprisingly, the concept of constitutional “originalism” springs from the same murky, wishful well as religious fundamentalism.
Both doctrines treat long-ago-written documents—the U.S. Constitution and the Bible, respectively—as inerrant, permanently inert, but absolute guides to truth, justice and the “American Way.”
But, because both texts were originally created by human beings, they are, as humans are, potentially errant. And their meaning and applicability relative to contemporary social issues should be constantly evolving with society, not inert.
In other words, overly relying on the supposed original meaning of such texts to decide the most complex, vexing and evolving conundrums of human existence would appear patently unwise.
Simple common sense would be a more flexible, less constrained practical guide—which is how humanist and non-originalist judges decide moral issues and legal cases. Certainly, legal texts are essential in this process but should not be viewed as absolute. As, say, with the Constitution’s silence on slavery and women’s rights.
When originalists argue that zero text exists in the Constitution regarding abortion, and therefore it should be beyond federal purview, it should be immediately pointed out that women and slaves once upon a time were also not mentioned.
Yes, Congress could pass a law about abortion to override the new normal for abortion, but the Court could also acknowledge the contemporary reality: a majority of the country favored—and still favors—the abortion allowances and restrictions codified in Roe v Wade.
In this context, jettisoning Roe appears a discordant infliction of religious bias on the nation by justices who are devout, anti-abortion Catholics (or quasi-Catholics in the case of Neil Gorsuch, who worships in an Episcopal church).
But, leaving religious fundamentalism for another day, let’s investigate the crux of constitutional originalism. The current high court’s presumed originalists include some that are more zealous practitioners (i.e., Clarence Thomas, Gorsuch, and Samuel Alito) than others (i.e., John Roberts and Amy Coney Barrett).
The problem with this ideology is that it can result in Court decisions at odds with what the majority of Americans believe and wish for, as is the case with federally legal abortion—which some 60 percent of the electorate continues to endorse.
The legal website Law & Liberty explains that originalists believe that by holding the Constitution’s presumed original meaning close in their decisions the Court can avoid causing “too much uncertainty in the law or the imposition of large social costs.”
However, as overturning Roe has already demonstrated, holding the Constitution’s original meaning close can also have “large social costs.” For example, after this recent fateful decision, a 10-year-old girl impregnated by a rapist was forced to travel to another state where abortion is still legal to undergo the procedure.
After all, the American tendency toward worshipfulness manifestly does not just pop up in adulthood. Something clearly happens in carefree, clueless childhood that—if it doesn’t create little believers immediately—at least sets the stage for eventual divine adoration later on.
ON THE OTHER HAND | Curated contrary opinions
U.S. Supreme Court Associate Justice Neil Gorsuch: Why Originalism Is the Best Approach to the Constitution?
Also problematic in “originalism,” the language and meaning of this 18th-century document is often far from clear, because, while the Constitution’s language never changes (except with amendments), society never stays the same. Sometimes quaint 18th-century prose structure presents its own clarity issues as well.
In the 1980s Justice William Brennan slammed then-novel arguments in favor of judicial “originalism.” At the time, according to the Brennan Center for Justice, he said:
We current Justices read the Constitution in the only way that we can: as twentieth-century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be: What do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.
Yet, originalists believe that literally keeping to the “letter of the law” and divined intent of the Founders saves justices from allowing private, intuitive biases to infect their public judicial reasoning. But progressives worry that the conservative nature of originalism just aids conservative justices in making conservative decisions. Conservatives, on the other hand, worry that non-originalist interpretations open the door to too much intuitive thinking, accommodating liberal decisions.
Even judges, at all levels of the judicial system, must remain acutely aware that their own deep-seated and biased thinking constantly conspires against them as they try to make fair, unbiased decisions.
This necessary fair-mindedness requires intellectual flexibility that excessive devotion to old texts dangerously tightens.
Below is Justice Gorsuch’s view of “living constitutionalists”:
[W]hen it comes to the social and political questions of the day they care most about, many living constitutionalists would prefer to have philosopher-king judges swoop down from their marble palace to ordain answers rather than allow the people and their representatives to discuss, debate, and resolve them. You could even say the real complaint here is with our democracy.
But what do we do when, say, elected state representatives “ordain answers” that are morally and ethically fraught—and against the wishes of a majority of Americans and the ageless spirit of the Constitution?
Then, judges must decide. And the issue of abortion is one of those instances.
But the highest judges in the land decided not to decide but to ignore precedent and defer to the states. Which, in a sense, is no decision at all.
