ORIGINALISM – SAY WHAT!

By Ruth A. Sheets

I don’t remember when I first heard the term “originalism” but I believe it was AROUND 2000.  The Supreme Court was arguing cases and some justices were claiming that their positions on issues were totally determined by “originalism.”

Justice Antonin Scalia was asked what it meant and said the Constitution should be read the way the founders intended it.  Even then, I was sure that was nonsense, but that supposed learned justice was spouting it as though it actually meant something and We the People should swallow something the founders didn’t even believe. 

Over the years, I have been paying attention to cases and how the “conservative” justices argued their positions.  I read summaries of several cases and noticed a few, rather obvious things about what the justices really meant by “originalism,” and the realities of 1787.

1. First, they ignored the variety of opinions and positions held by the members of the Constitutional Convention.  There was a lot of compromise going on to try to accommodate that range of opinions.  The originalists act as though the founders spoke in one voice.  They didn’t. 

2. At the time our Constitution was written, the only people who had any power at all were rich/propertied white men.  The members were very well educated for the time, but most of the population was not. 

3. Science was rather “limited” back then.  Only a few of the elements that were not useful metals had been identified and some of their properties known.  Observers were just beginning to get a sense of how weather happens.  They knew little of how the earth works or how diseases were spread.  Beyond what they needed to know to travel on the water and catch fish and whales, the oceans were a total mystery.  

4. Some of the founders were Christian, but several considered themselves deists who believed God had created the world and stepped back to let it develop as it would.  Members like George Washington believed religion was personal and not to be established in any way.  Most of the founders believed there must be freedom of religion included in the Constitution.  It was done through the Bill of Rights in 1791. 

5. Education beyond basic reading, writing, and arithmetic was reserved for the privileged white men of the time.  It would be decades before any women or people of color would be able to attend schools providing higher education.  A couple of indigenous men had attended Harvard briefly before the American Revolution, but that’s it for non-white-male persons.  Education emphasis now is very different from what the founders received.  They studied philosophy, religion (Christianity), Greek, Latin, the classics, some mathematics, rhetoric, and writing/composition.  Even conservatives now would not see that as the education they would want for themselves or their children 

6. Women provided most of the medical care at the time of the founding.  They were midwives who knew the use of herbs and other things used to provide care.  Women delivered babies, helped with abortions, cared for injuries, etc.  This woman-centered medicine was overtaken and dismissed as men wanted power in a medical “profession,” beginning in the mid-1800s.  Those men pushed for laws to make abortion illegal in some places to diminish the role of midwives, not because they had any religious objections. 

7. The founders only wanted propertied white men to vote because they thought no one else had the integrity, intelligence, or ability to understand the Constitution (or anything else). 

8. Technology was basic.  The Industrial Revolution was getting wound up.  Large scale manufacturing was just starting in Britain.  Here most production was on a small scale, often home industries by families.  The vast majority of the people lived on farms, working the land.  The economy was rather limited. 

9. In short any honest comparison between life 236 years ago and now is interesting, but nearly irrelevant.  Even the founders’ thinking about the world was quite different.  I suspect the average 12-year-old today has more awareness of the world than most of the founders.  That is not an insult on the founders, but the fact that so much more is known now.  Through technology and public education, children are exposed to and astounding amount of information.  

Justice Scalia claimed he could understand the founders and knew what they wanted for this nation.  However, he voted for Citizens United which said money is speech and corporations or practically anyone else could give as much money to candidates or their campaigns as they chose.  There is no way any of the founders would have said money is speech or would have publicly approved of buying elections.

 When writing to overturn Roe v. Wade, Justice Alito didn’t know or care that abortion was legal nearly everywhere in America at the time the Constitution was written.  He had to turn to a 17^th Century misogynistic English witch-hunter to find someone who was extremely opposed to abortion to cite.  So much for originalism.  Chief Justice Roberts should have sent Alito back to do his homework, or rather the Chief could have done his, to see that the justices had no grounds to allow abortion to be made illegal anywhere in this country on originalist grounds.

 There was no “affirmative action” in 1787 so it must not be acceptable in 2023.  Of course there was no affirmative action back then because only rich white men and their proteges went to college.  They were already affirmed and didn’t need action on their behalf.

 There are a lot of cases this year coming before the SC.  With at least Alito, Thomas, and possibly Roberts claiming to be originalists, it will be interesting to see which rights they are willing to take away from Americans and what kinds of arguments they will claim for the founders so they can use them to justify their positions.  What I have noticed, the claim of originalism in reality is the excuse given to make one’s own personal selfish beliefs law or overturn a properly passed law. 

Hey, now, the SC can take on cases that aren’t even real cases, but made up by someone with some kind of hypothetical situation the justices can rule on as they did this year related to a website owner who didn’t want to make wedding sites for same-sex couples when no such couples had ever even approached the person to make one, in fact the plaintiff didn’t even have a website business up and operating.  The founders would never have thought such cheating to impose one’s own religious beliefs acceptable.  Our Supreme Court 6 thought it just fine.  

 Six of the current justices have a deep belief that their interpretation of the law permits them to overturn precedent, ignore the desire of the American people, and ignore the critical elements of our democracy, even our Constitution.  They have said for example, that gerrymandering is OK if it is political.  What!  Gerrymandering started after the Constitution was ratified and most of the founders would not have permitted that kind of cheating, but our current court thinks it’s OK.  The SC has permitted people or other entities with no standing to bring cases to the Court, that is if the 6 justices want to make changes to the law the case would allow.  The 6 want to rule in America when they have not been elected, have no term limits, and can act illegally with impunity because Republicans would never impeach one of the guys needed to undermine our democracy, no matter what that justice has done, ala Clarence Thomas, Samuel Alito, and the other justices who have received “rewards” from folks with cases before the court.  I want to know which founder would have approved that.

 We don’t live as the people of 1787 lived.  We mostly don’t use outhouses, don’t take a full day to travel 20 miles or a month to travel to Europe, and now have technology the founders could not possibly have dreamed of.  Since we don’t live as the founders did, don’t have their world view, have expanded rights to all citizens, even who is a citizen, why would anyone think pretending we can know what the founders intended  236 years ago could matter legally today?  It shouldn’t, and we must call them out on it when they claim that is what they are doing!  They’re not!