With US Supreme Court Justices Amy Coney Barrett and Brett Kavanaugh making rounds in the media for refusing to block the suffocating Texas Heartbeat Act, it is only apt to look at the interpretation style they follow–constitutional originalism.
Originalism is a method of interpreting texts exactly as the author would have wanted them to be interpreted. Constitutional originalists believe that the constitution ought to be given the original public meaning that it would have had at the time that it became the law. Unfortunately for America, the Constitution was written at a time when only cis, white, heterosexual men were allowed human dignity, making the laws suffocating for a majority of the population.
However, constitutional originalism hasn’t been around forever. It grew popular in America in the 1970s and 1980s, championed by conservatives, starting as a response to increasingly progressive judicial rulings. Until recently, it had lost its appeal.
After four years of President Donald Trump, constitutional originalism gained more traction. America grew polarised, and Republicans took Trump’s winning as a sign to push for three Conservative judges. According to Harvard Law School professor Michael Klarman, Trump explicitly promised during his 2016 presidential elections to let the Federalist Society for Law and Public Policy Studies–the organisation of Conservatives advocating for constitutional originalism – choose his judges. Without that, Klarman claims, religious conservatives may not have supported him in 2016.
Rulings by judges that uphold this ideology will prove how extreme it is. The Dred Scott v. Sandford case of 1857 illustrates this perfectly. Dred Scott was an enslaved black man who lived in Missouri, a slave-holding state. When his owners moved to Illinois–where slavery was illegal–he moved with them and sued them. However, the case was tried in Missouri, causing him to lose. He then sued the US Federal court, which upheld the Missouri law. Finally, he appealed to the US Supreme Court.
Rather than freeing this man, in the March of 1857, the US Supreme Court ruled against him, deciding to value constitutional originalism over the tortured life of man. The then-Chief Justice Roger Taney wrote in his opinion that people of African descent are “not included, and were not meant to be included, under the word ‘citizens’ in the Constitution and are therefore claim none of the rights and privileges”. Taney supported his ruling with a survey of American laws claiming that a “perpetual and impassable barrier was intended to be erected between the white race and the one which had been reduced to slavery”.
The ruling of the Heartbeat Act is proof of the continuing monstrosity. The Heartbeat Bill–which is ratified in eleven American states–makes abortion after the sixth week illegal. At six weeks, some foeti may have a faint heartbeat which, according to Conservatives, makes them “alive”. However, it is ludicrous because most women don’t even know they are pregnant at six weeks, forcing them to have a child they don’t want, or can’t take care of. In the name of ‘pro-life’, the act is controlling women and their bodies.
Paradoxically, one of the founding fathers of the US Constitution, Thomas Jefferson, famously talked about renewing the constitution every 19 years. He stated that younger generations shouldn’t be governed by outdated laws. When even the founder of the nation agrees that the laws may need updating, it seems nonsensical that judges do not. The constitution may be a masterpiece but, at the end of the day, it is a book, and it needs to be renewed to stay relevant.
Other arguments against constitutional originalism talk about how there were 55 delegates responsible for the birth of the US constitution. It is time-consuming and impossible to ascertain what all 55 delegates had in mind when each sentence was written. Given that all 55 delegates were white, property-holding men, it seems biased as well.
It is a privilege to be unaffected by constitutional originalism, because it means that the constitution was written by people that looked like you, for people who look like you. For most of the population, it is oppressive and disgraceful to their ancestors because they didn’t sacrifice their lives for equality to have a cis, white, heterosexual man undo it all.