Why Originalism is a Bad Idea

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Some justices on the Supreme Court view themselves as originalists. But what does that mean? Originalists believe that the text of the Constitution should mean what it did at the time it was ratified. Thus, judges’ rulings would be bound by potentially antiquated meanings with little regard to modern sensibilities. Although at first appearance this may seem like a good idea, a potential way to limit judicial activism and ensure that judges abide by the text of the Constitution, in reality this does not make much sense and in general is just an extremely bad idea. It is especially worrisome when it is understood that some originalists would nonchalantly overturn “settled” legal precedents that the public has relied on for generations. 

So why does originalism not make sense? Well, first off the Constitution was not written in a very defined and restrictive way. A lot of the wording and clauses are left pretty ambiguous, vague, and undefined. The founders themselves, argued and disagreed on quite a bit of the meaning of things, such as whether the Constitution gave the government implied power over anything that was not expressly forbidden and which could be reasonably connected to a power granted by the Constitution (Alexander Hamilton’s view) or whether the Constitution was limited to only what is explicitly written in it (Thomas Jefferson and James Madison’s view).  So, which founder should the current justices give more weight? If the founders could not agree on an exact interpretation of the document that they created, so how would judges hundreds of years later be able to do what they could not? It just does not make sense.

The concept behind originalism only gets worse when examining the practical effect it would have on “settled” legal precedents. Many originalist justices advocate overturning Roe v. Wade, the case granting women a constitutional right in making decisions about their bodies, specifically in relation to abortion. The court had based the right upon the Due Process Clause of the 14th Amendment which provided a fundamental right to privacy. Obviously the right to privacy is not clearly defined by the Constitution, leaving it up to interpretation. Originalists, thus, view the case as a prime example of judicial activism, where the court gave women a constitutional right where none had been originally intended. Of course viewing women’s rights in historical terms, measured by the context that at that time women had no rights, then of course abortion or any right for a woman’s self-determination would not be constitutional. This may sound absurd on it’s face: women’s rights at the moment seem to be settled law, but not long ago Roe v. Wade seemed to be settled law and yet now it looks increasingly likely to be overturned. 

However, it is not just women’s rights at stake. Recently a member of Congress, Senator Mike Braun, questioned the validity of Loving v. Virginia, the case that granted a right to interracial marriage. Loving, like Roe, is based on the Due Process Clause of the 14th Amendment. Braun reasoned that since Roe v. Wade was judicial activism and should be overturned in favour of individual states deciding the issue of abortion, that other cases based upon the same constitutional reasoning as Roe would also have to be overturned in favour of individual states deciding those issues. How can Loving stand if Roe falls, if both are based upon an activist interpretation of the Constitution? Braun attempted to walk back his statement regarding Loving, but his reasoning remains and will likely be used to overturn various “settled” legal precedents. In fact current Supreme Court Justices Thomas and Alito are already on record wanting to overturn  Obergefell v. Hodges, the case that granted a right to same-sex marriage, a right that is again based upon the 14th Amendment. 

Not only are rights that have been declared constitutional by the 14th amendment in serious jeopardy of being overturned, many other laws and protections are becoming increasingly vulnerable. Justice Thomas again is on record wanting to abolish the “substantial effects” test that has been used by the Supreme Court for nearly 100 years. Congress has the authority to regulate roads, railways, etc, used to transport goods in interstate commerce, as well as the goods and vehicles transporting them. This authority is derived from the Commerce Clause of the Constitution. The Court also developed the “substantial effects” test which allows Congress the ability to regulate any activity that “substantially effects interstate commerce.” It is through this test that has allowed Congress to ban discrimination across the country (including race, disability, and age discrimination), as well as basic labour protections (including minimum wage, overtime, and regulations regarding child labour). However Justice Thomas would interpret the Commerce Clause with the meaning that he believes the Founders intended and which would not expand the power to cover protections for anything not directly related to commerce, thus overturning the substantial effects test and all laws that have relied upon it for their constitutionality. So what does that mean? Well, it means any federal discrimination acts or labor rights could be abolished in favour of allowing the states to determine what constitutes discrimination or fair labor rights. Although again this may not seem so bad (what state is going to openly allow discrimination?), one must keep in mind that civil rights laws are less than 60 years old and that there is still a long way to go for complete equality. If there is no concern that a state will pass/allow discriminatory laws, then why not just keep federal legislation that guarantees that? The only reason to abolish federal legislation that prevents discrimination is in order to allow certain states the freedom to re-instate discriminatory laws. And this, unfortunately, is where the originalist argument is headed, cloaked in the veil of state’s rights.   

One last thing, that occurred to me and I find an interesting point when thinking about originalism and SCOTUS is the fact, that the ability for the Supreme Court to even decide upon the constitutionality of actions by the legislative, executive, and administrative branches of government could seriously be questioned because the Constitution does not explicitly give that power to the judiciary. Instead the Supreme Court gave itself that power when deciding the case Marbury v. Madison. So if originalism depends upon the text and meaning of the Constitution when it was ratified, then how does the Supreme Court even have the power to declare anything the other branches do unconstitutional? Again, it may seem absurd to think about this, as it is so ingrained in our checks and balance system, but it is not in the actual text of the Constitution. This is why the idea of originalism makes no sense because it ignores the fact that our Constitution was designed to adapt with a growing country. The founders could not predict and determine everything that may become important, they could only do what they thought was right and necessary at the time and when the need arose, they adapted. It is not necessary for our modern society to be restrained by antiquated ideas that we know today are wrong (like allowing certain states to discriminate). We can and should fulfil the founders idealism by viewing the Constitution as a document that grows and adapts with the country. I believe that that was indeed what the founders wanted.