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.