Monday, July 12, 2021

Debunking Originalism

Annamaria on Monday

Some would say I have a lot of nerve, taking up this subject. Perhaps my expertise in this area is on thin ice.  I am not a constitutional scholar. I do not even have a law degree. I claim the right because, as a historical novelist, I have spent quite a number of years studying history and using my imagination to get into the minds of historic characters. To do so, I must learn enough about the past so that I can tell what it felt like to live in past times.  Originalists—as far as I can see—are purporting to do just that.   So, I have decided to jump into this subject with both feet.

Originalism is a philosophy of law in the United States.  Its practitioners say they want understand and apply today the exact ideas the framers of the United States Constitution had in mind when they wrote that precious document. Originalists on the US Supreme Court apply to today’s decisions their understanding of what the framers of the constitution we're thinking, “at the time it was adopted.” My problem with this philosophy is that it applies standards from nearly 250 years ago to questions that would never have come up at that time.  But worse than that, practicing Originalists cherry-pick how they apply their rule.


Originalists used their doctrine as a weapon against civil rights legislation, most notably in support of Jim Crow laws by Senator Sam Ervin in the 1960s and by Judge Robert Bork in the 1970s.  Lately, in the case of gun control, Originalists on the Supreme Court have taken the extreme position that all gun ownership in the United States is protected by the Second Amendment, regardless of the design or the intended purpose of the weapon. When I look into the minds of the original framers of the Constitution, I see them thinking about the only common firearm at the time: the muzzle-loading musket. My father owned such a weapon when I was a child. It was what the soldiers of the American Revolution carried, and he admired them, so he treasured his little piece of their history. 


When it comes to Second Amendment rights, I wish the Originalists would stick to their philosophical guns (pun intended).  In fact, on this question. I am an originalist. I think every person in the United States has a constitutional right to carry a muzzle-loading musket. They can even try to conceal it. Knowing what I learned from my father about the weapon, it is almost impossible—without a lot of practice—to reload in less than 3-5 minutes. It's also very hard to hit a target with one. I am sure there are people walking around now who would be able to do some damage with such a weapon, but hardly any compared with what a crazed former employee can do in a post office with an AK47.

Right now, the United States Supreme Court has three self-proclaimed Originalist justices: Samuel Alito, Clarence Thomas, and Amy Coney Barrett. Justice Thomas and Justice Barrett accepted their appointments to serve in that body for the rest of their lives.  They were put there by Republicans to hold the line against progressive laws. When they read the minds of the framers of the Constitution, they side with voter suppression laws in southern states, even when such new rules disproportionately eliminate the voting rights of black people.


Well, yes.  The framers of the Constitution probably could not have imagined that one of  their slaves might become the governor of a state.  Or that God-forbid a woman would enjoy the full benefits of citizenship. If you're an originalist you think you have the framers’ permission to deny full civic participation to people who are not white men.  BUT!  How then can a black Originalist or a female Originalist imagine that the framers of the Constitution would approve of their service on the Supreme Court?


(Justice Alito escapes this objection. But I'm not too sure what the framers of the Constitution would think of him either. He is—like me—an American of Italian descent from New Jersey. I know for certain, by personal experience, what kinds of responses white America makes to people of our particular ilk.)


My arguments here have a much more profound basis.  As a student of history, I take exception to the underlying notion of originalism—that the framers of the American Constitution would want the country they so bravely founded to be stuck in a rut. When I look back at the behaviors and the declarations of the framers, I see them in the context of their world, which still largely believed in the divine right of kings.  Compared to that world, I see Jefferson, Hamilton, Madison, et al as the most radical people on the planet. They believed in God, but their God, they thought, endowed them with inalienable rights. They overthrew government by their king because it robbed them of those rights.  They fought a bitter war and defeated the most powerful army on earth in order to ensure their right to self-government. They were Eighteenth Century progressives.  They were democrats, and they founded the first country ever to be ruled by its own people. If we could reach back and bring forward their brand of human rights thinking, the framers of the Constitution would be what they were in their own time: The most progressive people on earth.  



  1. There are many good points here, but I would not point to Jefferson, et al., as progressive. He was a slave owner, after all, and Black scholars have said his relationship with Sally Hemings was not consensual, but based on her enslavement.

    I'm with the abolitionists as far as progressive thinking, those who stood strong against enslavement, including Thoreau, Thaddeus Stevens, etc., as well as the great Frederick Douglass and Harriet Tubman.

    1. I see your point, Kathy. And I too disapprove of a lot of Jefferson’s behavior. But my point here is narrower— that hat he was a progressive in the context of the his own times. I do not defend his personal life. I do think the philosophy he expressed in the Declaration of Independence show a mind, if brought forward to today, would be politically progressive. His personal life to the contrary notwithstanding.

  2. Isn't your point that these men were progressive in the context of their times? Is it conceivable that they would want or expect their words to apply to, for example, the internet? In fact, they envisaged constitutional amendments surely partly to address that. So, one could argue that it's easy to fix these issues by drawing up a constitutional amendment. Good luck with that...

    1. Precisely, Michael. And amendments to the constitution are practically impossible. The United States has not been able to pass an equal rights amendment for women. We have a lot of foot draggers among us, unfortunately. In my way of thinking, they are quickly making the United States lose its progressive leadership position in the world. More’s the pity.

    2. Hmmm. I would question whether the USA has the progressive leadership in the world. I wouldn't call the Electoral College progressive, nor the distribution of senate seats, nor the lack of universal health care, nor the role of money in elections.

    3. I see what you mean, Stan. On the other hand, the USA is still the only country trying to I make democracy work in a multicultural, multiracial population. That’s what I was thinking about. It remains to be seen if we will be able to succeed. That’s what I see the “foot draggers” are trying to stop in its tracks. I for one think this is the only country where that might even come close to happening. It’s working—to a pretty advanced level—here in NYC. But —by no means—is it guaranteed to work nation-wide. That’s the progressive leadership position I was thinking about. The objections you raise are serious issues, but no other country—as far as I can see—is even trying to achieve such a progressive state.

    4. I have to say hmmmm again. The UK isn't multi-racial, multicultural? France isn't? South Africa isn't?

    5. I knew you would say that. They are, but not as intensely. They would be to the same extent if you joined them all together and threw in Israel, Palestine, Argentina, Chile, and Hong Kong. As it is, the places you list are pretty fraught with challenges of their own when it comes to functioning peacefully. My hope is that many places will find solutions and that we will learn from one another. Too bad that so many with fewer challenges than any of the above are straying away from democracy all together. That is fearsome to me.

    6. As much as I hate to see it, perhaps the "industrialization of farming" may be our saving grace. That is, as larger and larger swathes of land are farmed by large corporations, the number of small families living on farms will continue to drop. The percentage of people living in rural environments will shrink, while the urban and suburban areas will continue to grow. Fear and racism and hatred are most easily conquered via familiarity, understanding, and interdependence, and those are things that more dense populations tend to breed.

    7. What an interesting observation, EvKa. I believe you are right about familiarity, understanding, and interdependence. You may recall my analogy of the colors of the hands grasping the pole in the subway. In NYC we are likely to innately understand that we are in this life together—all “hanging on to the same pole.”

      But I also thought—when I read your comment—about the slave owners’ children of the Old South, who grew up in houses with blacks, were brought up by, most likely drank from the breasts of their Mammy, but somehow remained racist.

      Stan and I recently watched a production of Master Harold and the Boys, a play by a South African playwright. Thanks to mobile phones and streaming technology, we were able to do this while we were 1000 miles apart. The play is about this question of familiarity. In the course of the action, Master Harold, a whiten young student and his mother’s black employees are thrown together for a long time by a storm. I am hoping that Stan will weigh in on this question. What I learned by watching the play with him gave me a lot of insight about what is and what is not familiarity. The word, of course, has the same root as “family.”

    8. You are right (of course :-), that familiarity, by itself, is not enough, as you can be VERY familiar with a group of people AS YOUR SLAVES and that's how you continue to think of them. But if you think about rural white folks who are never even near black people, they can be 'inherently' racist, even when they think they're not, because they don't KNOW those people, that culture, the problems and history by which they're encumbered. Those rural people think, THIS is life, the way I have lived and continue to live it, the experiences I've had and continue to have, and think, "Everyone should live this way, believe this way, because it's RIGHT!" As the saying goes, "familiarity breeds contempt"... sometimes. But familiarity is also a frequent necessity on the road to understanding, which is another step on the road to tolerance and respect. There are no certain paths to utopia, but there are many well confirmed paths to hell. :-(

    9. By the way, when I'm saying "rural white folks," I'm talking about those in Wonder-Bread parts of the country (including much of the state in which I pump air in and out) where people of African descent are pretty uncommon, outside of large cities (and sometimes even there). Obviously, there are also many parts of the country where that doesn't hold, where there's plenty of familiarity, and yet the hatred persists. Some of that is just innate meanness and selfishness, and some of it is taught, generation to generation. Those latter are the links in the chain that stand a chance of being broken from the chain.

  3. Replies
    1. Thank you so much, EvKa. I only wish debunking the philosophy would rob it of its power. That doesn’t seem likely, I fear.

  4. I think there is much in the U.S. that is not democratic and the situation is veering away from democracy more and more with voter suppression and SCOTUS decisions upholding it and more.

    That an unelected body of lifetime appointees is overturning legislation voted on by elected representatives is terrible, and anti-democratic. People fought for the right to vote with their bodies in the South, some badly beaten, some killed.

    There are also anti-democratic, misogynistic laws being passed by several states, preventing women from exercising their rights to make decisions about their lives.

    Ireland and Arventina overcame backward laws regarding women's rights, but this country is going in the opposite direction.

    I don't think the U.S. is the bastion of democracy, not when immigrants are locked up or deported, children are separated, Black men are shot by police disproportionately to their numbers, women are increasingly denied their rights, especially those who are poor and/or of color.

    Not when there is systemic racism from public school entrance to corporate boardrooms, to housing discrimination to the pay gaps for women and Black, Latino and Indigenous peoples. Not when people of color are the lowest paid and kept in service jobs.
    Not when undocumented workers are denied health care and food benefits, as well as unemployment insurance.

    Not when millions were laid off during a pandemic, the number of homeless swelled, food lines were huge, while millionaires and billionaires got even richer. Not when the Senate is known as a "millionaires' club." Not when the wealthiest and their corporations pay no federal taxes.

    This isn't a democracy. It's becoming an oligarchy, with millions of hard-working people paying the price.

    There are other countries where there is more equality.

  5. Judges bending their avowed judicial philosophy to accommodate a political result on hot button issues is nothing new. Especially on election issues.