Originalism
Let’s talk about “originalism”. This is the philosophy that many conservative judges and justices of the Supreme Court use in their rulers. In essence, it holds that people should interpret the Constitution and Bill of Rights the way the Founders originally intended. Here’s a pretty decent video that explains it quickly.
Three current sitting justices are originalists: Amy Coney Barrett, Clarence Thomas, and Neil Gorsuch. Brett Kavanaugh, Sam Alito, and John Roberts are all members of the Federalist Society (who also made the video above) so they are likely originalist-ish in their opinions. This judicial approach stands in opposition to the more liberal approach to the Constitution, which is the “living doctrine” philosophy. This means that the Constitution should not be judged by what the Founders intended but should be a changeable, adaptable document that flexes with time.
When the Constitution and Bill of Rights were being created, America was a very different place. In fact, the country wasn’t even a teenager yet. The main debate on how to set up the government came down to a disagreement between the Federalists and the Anti-Federalists. In case it’s been a while since you were in a history class, here’s a quick breakdown:
Federalists, the chosen party of Alexander Hamilton, were all about that strong national government. The Anti-Federalists, if you couldn’t guess, wanted the states themselves to retain most power. The compromise between these factions would give us the Constitution, which set up how the federal government would work and what powers it had, and the Bill of Rights, which protected citizens’ rights. Everything not clearly outlined in the Constitution should be left up to individual states to decide. Here’s the actual text from the 10th Amendment:
Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.
This Amendment is the foundation of many recent SCOTUS rulings and opinions, specifically with regard to abortion. In the leaked draft, Justice Alito says that Roe v. Wade should have never been decided at all. He also names a number of other cases pertaining to interracial marriage, gay marriage, and gun rights. His idea is that since the Constitution doesn’t explicitly grant the federal government the power to legalize abortion, they cannot force other states to keep it legal.
But there’s a catch in his reasoning. Many people, including myself, have argued that abortion is protected by both the 9th Amendment and the 14th Amendment. That would nullify the idea that states can outlaw abortion because states can only enact laws that aren’t protected by the Constitution. In other words, states don’t have the standing to take away a women’s right to bodily autonomy any more than they do over slavery. Texas couldn’t suddenly make slavery legal again.
Let’s get back to the idea of originalism though. Even if we use the most conservative, watered-down version of American history, you cannot argue that looking at the Constitution through the eyes and minds of the Founders is an exercise in white supremacy. Half of the people who ratified the Constitution owned slaves. This is a simple fact and provable through historical records. They did not see Black people as human. They were animals to be bought, sold, abused, and used as their owners saw fit.
There’s also a reason why the only people who could hold any power in the newly formed United States of America were white, landowning men. Zero women had a say in the writing of the Constitution. No person of color was consulted. The rules and laws that govern our country were created exclusively by wealthy white men. Is there really a question as to why wealthy white men have come out on top from the beginning of our nation to today? Clearly the game was rigged from the start.
Why on earth would we look into the past to consider what the Founders intended the Constitution to be? We already know! They wanted America to be ruled by a select class of people for their own benefit. That’s why they set it up the way they did! The Founders would be appalled to see TWO Black Supreme Court Justices. And women in Congress? Forget about it. If they had wanted any of that to happen, they would have chosen it from the start. Obivously, they did not.
Originalists would argue that a Justice isn’t reading the minds of the Founders but merely interpreting their intentions and context when they drafted the Constitution. I’d love to know what context and intentions could be explained to Patrick Henry that would make him agree with releasing his slaves and apologizing to them. Again, we know there isn’t one or he wouldn’t have owned slaves! There were plenty of abolitionists at the time, with some of the other Founders being counted among them. It wasn’t a new idea. He, along with the other racist Founders, just didn’t care!
These are the people through whom we should consider important court cases involving women and civil rights hundreds of years after they died? Are you kidding me? In what world does that make sense? Only one: a world in which white supremacy is more important than human dignity and women being able to do more than be breeding mares for men. This is the world originalists would have us return to. By ignoring people’s established rights through decades of precedent they would not only force women to give birth to their rapist’s babies, but they would also allow the rapist to sue the woman if she tried to abort it.
But hey, at least men would still be in charge.
Originalism is utter bullshit. It’s not a proper or sound judicial approach. It is a backward philosophy that seeks to reinforce and strengthen not only white supremacy but also the rule of men. And yet, more than a third of the people who sit on the Supreme Court believe in it.
In order to protect women, to protect our citizens of color, we need to expand the court to weaken the sway of these justices. The Founders never intended women to have rights. They never intended for anyone, other than wealthy white men to have power or autonomy. If we continue to use their guidance in governing our nation then we will never see true equality. Pack the courts and let’s make America great for the first time.