To quote Washington Post writer Ruth Marcus in her Dec 1, 2022, opinion piece: “Originalism is bunk”. Marcus would have done well to quote former President Ulysses S Grant. And the Supreme Court would do well to consider his words...
Originalism is bunk
The conservative majority on the US Supreme Court and a phalanx of ultra conservative lawyers have decreed that originalism is now the law of the land. Originalism is defined by Merriam-Webster dictionary as: a legal philosophy that the words in documents and especially the U.S. Constitution should be interpreted as they were understood at the time they were written.
To quote Washington Post writer Ruth Marcus in her Dec 1, 2022, opinion piece: “Originalism is bunk”. Marcus would have done well to quote former President Ulysses S Grant. And the Supreme Court would do well to consider his words.
President Grant, the Union hero of Civil War victory, said in his 1885 Memoirs:
The framers were wise in their generation and wanted to do the very best possible to secure their own liberty and independence, and that also of their descendants to the latest days. It is preposterous to suppose that the people of one generation can lay down the best and only rules of government for all who are to come after them, and under unforeseen contingencies…We could not and ought not to be rigidly bound by the rules laid down under circumstances so different for emergencies so utterly unanticipated. The fathers themselves would have been the first to declare that their prerogatives were not irrevocable.
Grant was president when the fifteenth amendment, which prohibited denying the right to vote based on race, color or previous condition of servitude was adopted. The framers of the constitution, adopted just eighty-one years earlier, could not have conceived of such an idea since the constitution in its original format acknowledged slavery and in fact counted slaves as three-fifths of a person, so less than fully human.
Grant, while no jurist, showed a far greater understanding of constitutional law than our current crop of so-called conservative, originalist justices and their brethren in the Federalist Society, who seek to impose their view of the dead hand of the past on today’s society. That is the last thing the founders would have wanted as expressed by President Grant, who held a commanding role in the greatest convulsion of our nation, the Civil War.
Grant understood that technology changes society when he said:
At the time of the framing of our constitution the only physical forces that had been subdued and made to serve man and do his labor, were the currents in the streams and the air we breathe. Rude machinery, propelled by waterpower, had been invented; sails to propel ships upon the waters had been set to catch the passing breeze-but the application of steam to propel vessels against both the wind and current, and machinery to do all manner of work had not been thought of. The instantaneous transmission of message around the world by means of electricity would probably at that day have been attributed to witchcraft or a league with the Devil.
Just as technology changes society, our concept of free people governing themselves and a limited government have evolved. Free people no longer means just white men of property as it did in 1789. It now includes people of color, women and poor people. It means that government will (or perhaps may is a better choice of words) enforce the rights of people of color and poor people and women. It means that working people have the right or organize to demand fair pay and decent working conditions in exchange for their labor. All concepts foreign to the world of 1789.
In a recent debate over the meaning of the Second Amendment in a college forum held on Zoom (what would the founding fathers have thought of Zoom!) a former Republican Congressman told the electronic assembly that he believes the Constitution is scripture and divinely inspired.
Would the word of God value an enslaved American of African descent at two-thirds of a person? I think not. The constitution was hammered out after months of arguments, debates and bitter dissent by brilliant men trying to develop a system of government which would work better than a monarchy. They operated within the societal norms extant in the late eighteenth century and of necessity they agreed to compromises that are inconceivable today. An example of this is Article I, Section 9, Clause 1 of the original Constitution which prohibited Congress from passing laws that banned importation of slaves until the year 1808. Or Article I, section 10 which banned states making anything except gold and silver legal tender in payment of debts or Article IV Section 2 which required that a slave escaping to a free state would not be released from bondage but rather must be returned upon demand to the owner.
The Preamble to the Constitution set forth the goals of the founding fathers in drafting the constitution. It is aspirational and forward looking:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
All attempts to construe the constitution must consider the preamble as well as the text of the constitution. Some language of the constitution has no need to be construed as it is clear on its face. For example: Article I Section 3
No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.
Others clearly in need of interpretation such as Article 1 Section 8:
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
The entire massive structure of our federal government, whether we’re talking about interstate highways, Social Security, or virtually all other government activity, has grown out of this article. None of these concepts could have been remotely considered by the drafters of the Constitution.
The Supreme Court conservative majority and its eighteenth-century restorationist cheerleaders are leading this nation into a legal doctrine as wrong-headed as the 1896 Plessy v. Ferguson decision, which set the next five decades of law allowing segregation in schools with its “separate but equal” doctrine. It took fifty-eight years, until the Supreme Court’s 1954 ruling in Brown v Board of Education, to begin correcting that wrong.
With its so-called originalism doctrine, the conservative majority has set the stage to dismantle labor rights, women’s rights, civil rights, environmental regulations and a host of other protections that do not fit in their radical right agenda. The Dobbs case reversing Roe v. Wade is just the beginning my friends.
President Grant would have been just as appalled by today’s originalism doctrine as he was by the reactionary voices urging originalism in the 1880’s Jim Crow era.