The Con of Originalism
Originalists are running a con game that seeks to undermine the foundations of our institutions, indeed, of democracy itself. They want us to believe that they are simply “calling balls and strikes”, consulting only the original language of the Constitution (or the intent of the Framers as discerned through careful study of their writings). They insist that they have no ideological interest in producing policy outcomes that would make either conservatives or liberals happy.
In fact, they are taking a number of steps to implement their extreme right wing agenda without respect to any consistent theory. They pick and choose cases, not on their merits, but on their ability to provide for decisions that will substantially and significantly impact policies based on what they like and what they don’t like. They pick and choose their theories based on which provides the outcome they prefer. If originalism does that, they’ll base their decisions on that theory. If originalism doesn’t work to provide the outcome they want, they’ll use “tradition and history” to support their decision. If “tradition and history” doesn’t work…they’ll just make something up.
What “Originalists” Say They’re Doing
According to originalists, the Constitution can only be applied by taking into consideration the views and ideologies of a small group of white slaveholders in the late 18th century. Originalists expect us to forget that the Framers saw black people as chattel, women as inconsequential, native Americans as vermin to be removed as one would an infestation of rats, and most citizens as the hoi polloi, who, without proper control, would lead the country to anarchy at the earliest opportunity. And they wrote all these sentiments into their document.
Let’s imagine we’re interrogating an originalist as to why she is, in fact, an originalist. We could start by simply asking, “Why are you an originalist?” She might answer, “Because we ought to apply and interpret the Constitution as it was written, not as we wish it were written.” Fair enough.
We might then ask, “But why give special veneration to clauses that were written two centuries ago? Doesn’t the passage of time count for something? What are the benefits of originalism given these circumstances?” She might then reply, “Any model for interpreting the Constitution will have its flaws. But originalism provides a “standard model” that we can consult to assure that decisions are made in a consistent fashion. In baseball, we might not agree as to where and how big the strike zone should be, but once it’s set, we use it as is. We don’t let umpires make up their own strike zones. A particular team or a particular pitcher might not like the strike zone as it’s established but, so what? It provides a standard for all teams in all situations. If all the teams get together and decide on a different strike zone, then the umpires will use that new strike zone. That’s called legislation and the amendment process. But it’s not up to judges to move the strike zone as they see fit.”
It’s a compelling argument, isn’t it? Originalists hope we’ll be persuaded that they are neutral “umpires” that just call plays according to the rule book without favoring anyone.
What “Originalists” Are Really Doing
Nothing could be farther from the truth. In fact, justices and legal minds who claim to be originalists are making judgements based on ideology, putting their thumbs on the scales of justice in favor of the wealthy and powerful. Rather than simply admit that they are doing so, they use originalism as a cover for their ad hoc reasoning and decisions. We are being gaslit by originalists, who are pleased to use whatever argument they need to overthrow decades of precedent, ignore “original intent” when it suits them, or even to fabricate arguments and call them “originalist” Sadly, the media and too many otherwise reasonable journalists, academics, and politicians (including many on the left) have bought into or at least not energetically rebutted the con game.
Conservatives on the Court simply threw aside any notion of state sovereignty in carrying out their own elections when they tossed the 2000 election to their ideological comrade, George W. Bush.
In Citizens United, the majority simply made up the notion that money is speech. It insisted that the predictions of dark money having deleterious influence on our elections were overwrought, but that’s exactly what’s happened.
In District of Columbia v Heller, the majority found a right to owning a weapon as a means of self defense that isn’t mentioned at all in the Constitution. The majority then cherry picked from history books in an effort to find laws that support such a position. They, of course, conveniently ignored laws that restrained such ownership.
This same cherry picking of history was evident in New York State Rifle & Pistol Association v. Bruen . In this case, the Court made a hard pivot from a decades-long tradition of balancing to decisions that are based on ideology disguised as originalism. In his dissent, Justice Breyer pointed to “a 700-year Anglo-American tradition of regulating the public carriage of firearms in general, and concealed or concealable firearms in particular.” This tradition was altogether ignored by the majority. Simply put, the Court cited history that it liked and ignored history that it didn’t. We can expect to see more of this cherry picking of history to back up ideological decisions in the future.
In 2013, the court declared unconstitutional a crucial provision of the 1965 Voting Rights Act that required states with a history of race discrimination in voting to get pre-approval before making significant changes in their election systems. The court said that provision violated the principle of equal sovereignty among the states. But this cannot be historically justified since the Congress that ratified the 14th Amendment also created military rule over Southern states.
One can, in good faith, use a theory of originalism to make decisions. Or one can try to hide the fact that one is making ideological decisions by calling them all “originalist”. The present conservative justices are doing the latter.