I have been thinking about the doctrine of “originalism” that is dominant on our Supreme Court today. Originalism maintains that the Constitution must be interpreted within the mind of the Framers as it was written.
I disagree for a couple of reasons, one being that the history of the decisions of the United State Supreme Court are far from a history of “originalism.” Any of us can go back and look at landmark Supreme Court decisions and not find a continuing thread of “originalism.”
Secondly, if the lense of “originalism” is so important to our Constitution, then where are the voices of the Framers and Court Justices telling us down through the last two hundred and thirty some odd years that “originalism” needs to be the guiding principle in Constitutional law?
Those voices and guidance from the Framers and Court are not there. The Framers agonized over slavery and its continuance – hardly a position that would state they were looking at originalism to guide their construction of the Constitution. Originalism is a made up justification for unwinding the Federal Goverment and our society that grew out of World War II. It is as made up as Mitch McConnell making up a rule so he did not give Merrick Garland a hearing and vote as President Obama’s Supreme Court nominee. Interstingly, when Justice Ginsberg died at the end of Trump’s term, the McConnell rule was no where in sight. This is why it is so hard to respect these people – they do not have the consistency of their own principles and they bend them to suit themselves – hippocrisy.
One last point and I have said this before, the men that fought our Revolutionary War and established the new United States of America were the height of liberalism at that time. The Conservatives were still supporting the King. The kind of government our Founding Fathers established was as far out there on the Left as they could be at that time. Radicals, yes, they were – very radical. They were as far from being conservative and bound to a doctrine of “originalism” as you could be in 1788.
Originalism is as phony as the testimony we heard from Trump’s nominees to the Court about respecting Roe vs. Wade and the principle of state decisis (honoring precedent established in prior case law). Originalism is a raft of horse feathers.