OPINION: The Trouble With Constitutional Originalism – Cans Of Worms And Other Precedent Keeping Excuses Would Have Kept ‘Separate But Equal’ In Place Under Current Rubrick
Letter to the Editor: The Trouble With Fair-Weather Originalists
Editor’s note: Those calling themselves Constitutional Originalists stubbornly maintain that the Constitution must be interpreted exactly as written, and that if something wasn’t covered or understood back then, it won’t be understood now. Take Artificial Intelligence and child trafficking as an example. A recent ruling states that child porn is alright – as long as it’s generated by AI. Nevermind the fact that it represents real people in abusive situations, and that allowing it to now proliferate can have the effect of normalizing this type of abusive activity. It’s imperative to remember that the Framers of the Constitution lived in log cabins, used outhouses for bathrooms (no indoor plumbing or showers), had no electricity, and had only shortly before then invented the printing press, eventually enabling the dissemination of information far and wide and setting the stage for our current hyper information age. Acting as though those who wrote the Constitution did not envision it as a living document is to ignore the rest of their body of writing, outside the Constitution, such as the Federalist papers. It was intended to grow and change as our society did, not become a hindrance to the evolution of American Exceptionalism. This particular Supreme Court has basically decided that people aren’t guaranteed a right to vote and that the law cannot protect that right. This court has also held that gerrymandering is perfectly legal. This is basically political cheating – redrawing maps to favor the party that already won
so that their power will be more cemented. It’s also the court that decided that women do not have the same right to healthcare as men do, since once a woman becomes pregnant, her fetus has more rights than she does, and if a doctor has to choose whether to terminate a pregnancy at risk of jail time or let the woman die when she could have been saved, they are deciding that women’s lives aren’t important. If the Equal Rights Amendment receives legal challenges and wins, that would protect the right to abortion by protecting their right to healthcare. It’s unknown how many medical pregnancy terminations previously occurred regularly, but we now know it’s a lot more than previously thought, because now women are dying instead of being saved.
Dismissing a proper originalist legal reading simply because re-examining precedent would open a can of worms undermines originalism.
This article was published at CATO
Justice Samuel Alito’s explanation of how originalism disciplines judicial decision-making is a refreshing answer to those who see the Constitution as an empty vessel to be filled by transient social values (“Even Originalist Judges Make Mistakes,” op-ed, Oct. 3). The document means what it says. All the more reason not to ignore the 14th Amendment’s Privileges or Immunities Clause, as the Supreme Court has since 1873, shortly after the amendment was ratified. Alas, that is precisely what the good justice accepts, citing precedent—the high court’s Slaughter-House decision that year, which most scholars today believe to have been wrongly decided—adding that reviving the clause “would have opened a can of worms.” Had that rationale prevailed in 1954, we would still be living with the court’s 1896 “separate but equal” decision in Plessy v. Ferguson, effectively overruled in Brown v. Board of Education, which also opened a can of worms we’re still wrestling with today.
Justice Alito’s proper respect for originalism’s restraint on judicial mischief is ill-served by the court’s reliance on the 14th Amendment’s less substantive Due Process Clause to do the work the Privileges or Immunity Clause was meant to do. Not for nothing does the latter come first in the amendment. Still more, unlike with the former, there is precedent to guide the court: Justice Bushrod Washington’s ample explication of Article IV’s Privileges and Immunity Clause in 1823 in Corfield v. Coryell. If we are all originalists now, as Justice Elena Kagan remarked in her confirmation hearings, let’s not be fair-weather originalists. The text is there for a reason.
CATO Institute
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