“Originalism” Is A Farce
I am not a lawyer.
I say this upfront so that you know that my ability to see straight through the con of “originalism” and the sheer absurdity of its premise requires no law degree. This is some extremely accessible logic right here, and that means that anyone who tries to treat it seriously is, in effect, either insulting their own intelligence, their own character, or both.
So unsurprisingly, it was the central pillar of the arguments GOP Senators provided in their opening statements against Judge Ketanji Brown Jackson, the promised guiding light of their judgments of her in the coming days. They are, after all, essential players in the farce.
Over and over again, to the tune of the organ grinder, Republicans danced the same moves we have all learned to recognize: “the “original intent” side-step; the “Founders’ vision” foxtrot; the “unelected legislator” shuffle. These are the razzle dazzle phrases used to obscure the fact that they are at best presenting ahistorical perspectives on the same document they proclaim to love, and at worst parroting legalistic nonsense as a fig leaf for the motivated reasoning of the the last fifty-plus years of reactionary conservatism.
Yeah, it’s often both.
So let’s break it down without ever touching the actual legal arguments — because all of that is merely a finely crafted excuse to do whatever they want.
The Constitution Is a Rigid Document
This is so obviously wrong as to be painful. It was amended twice while the Founders were alive, in 1795 and again in 1804, precisely because they themselves did not hold it as inviolable and perfect.
Even if we were to allow the premise that they were super duper finished with it after the 12th Amendment and never dreamed otherwise despite putting an explicit mechanism to change it (I’m so fucking done), the Civil War kind of undid the whole argument that it was doing a great job without any further edits. I mean, as written, the Constitution created a conflict that killed 300,000 men who claimed citizenship under the document and another 300,000 who copied it almost word for word except for slavery being permanent forever and ever (no lie). Original intent can’t mean much once disagreements about what you meant have turned the country into a mass grave.
Speaking of, one of the most famous speeches in this country’s history — memorized by students everywhere, crafted and delivered by the founder of their goddamn party — openly and directly rebukes the idea that the nation after Gettysburg is continuous with the one imagined in 1789. It even starts with “Four score and seven years ago…” I mean for fucks sake.
And finally, in order to believe that the Constitution is rigid and unyielding and isn’t meant to be changed, you have to consider every amendment past the 12th — particularly, the 13th (slavery), 14th (equality under the law), and 15th (the right to vote) amendments — as illegitimate.
Which brings us to…
The Founders’ Vision
This is a pernicious little lie that somehow calls the Founders™️ visionary and traps our entire modern nation at the limits of the imagination of 18th century American aristocracy.
Besides ignoring that the Founders were not a homogenous ideological group (setting aside their race and gender), it deliberately forgets that they definitely knew we would need flexibility and provided exactly that within the bounds of the Constitution — while having very long conversations about why.
This argument further pretends that this philosophically diverse set of men were not merely all in agreement but also that how they saw the country in 1789 is the best we could ever hope for — which is frankly some bleak and nihilistic shit under some faux-patriotic façades.
And finally, this perspective on the Founders requires us to ignore the deeply destructive elements of their Constitution and the fact that every single one of them had a vested interest in maintaining the existing exploitative systems that gave them time to contemplate new forms of government all day. It even demands that we see this attachment to slavery and genocide as a good thing, instead of a thing to be changed, because then the first argument about how perfect the Constitution was would be null, and so would their last gripe…
Legislators in Robes
First, let’s be clear: Republicans have no problem with the Court making law. Their 5-4 majority tried to argue that Bush v Gore was some sort of bottle episode in American law as they chose the President of the United States over the actual voters, while their current 6-3 majority is making sweeping changes to national jurisprudence through the fucking “shadow docket” so they don’t have to explain their reasoning, which might as well be “because we said so” rephrased into pages of legalese.
So if they have no problem with judges making law (which is the natural effect of judicial review, I’d point out), then what is their problem with Democratic nominees leaving their mark on the Court?
Well that’s because this particular argument has nothing to do with logic or reason or even their beloved Founders™️, as they reject Marbury v. Madison to argue that all of this judging stuff is useless since Earl Warren is a giant piece of shit.
This is a relatively new signal to the elements of their base who still appreciate books slightly more than memes that they haven’t forgotten how Earl Warren “actively” lobbied the Court for the 9-0 Brown verdict that heralded the beginning of the end for de jure segregation in the United States.
This was the ruling that gave all the civil rights laws teeth, ended the laissez-faire approach to race from the federal government, and forced state and local enforcement of discrimination to find another excuse for poor outcomes besides open victim-blaming. (Now it’s coded!) “Activist” Chief Justice Earl Warren changed all of that 12 Angry Men-style (or so I like to imagine) and ushered in a revolution so momentous that we are still reeling from the backlash.
And that backlash is what Republicans are riding when they say they don’t want people “making laws” from the bench. They’re not mad at using the sweeping power of the judiciary to impose consequences that would be difficult, if not impossible to achieve through legislation — that’s pretty much the only way they’re going to maintain power! No, they’re mad when those legislators in robes advocate for freedom.
And so we have it: “originalism” flayed open and revealed for the hollow doctrine it always has been. Gonna be honest, it’s hard to see a philosophy that insists on a view of the Constitution that its authors explicitly rebuked, enshrines those very same men as gods, despite their endorsement of slavery, genocide, and oppression as part of their vision for the country, and vilifies Earl Warren for campaigning to end segregation — and not feel like it’s kind of (really) racist. In fact, it feels almost crafted to provide a “color-blind” rationale for racism rather than — just putting this out there — a coherent and thoughtful philosophy that could include and uplift Black citizenship and women’s autonomy and other elements necessary to provide equality under the law.
The fact that all of these holes are easy to see without a law course kind of demonstrates that the people trotting out these rotten canards cycle after cycle aren’t doing so because they believe in the truth of it; it’s just an excuse until they get their way, and they no longer have to pretend.
