A misguided quest for the original understanding

The Supreme Court's embracing of originalism should frighten us all. In the term that ended on June 30, time and again, the Court invoked originalism to justify coming to very conservative results. It is an approach to constitutional law that threatens basic aspects of freedom and equality.

In striking down a New York law that had been on the books since 1907 that limited concealed weapons in public, the Court in New York State Rifle and Pistol Association v. Bruen said, "Only if a firearm regulation is consistent with this Nation's historical tradition may a court conclude that the individual's conduct falls outside the Second Amendment's 'unqualified command.'" And the relevant history is the law that existed in 1791 when the Second Amendment was adopted and perhaps 1868 when the Fourteenth Amendment was ratified.

In overruling Roe v. Wade, in Dobbs v. Jackson Women's Health Organization, the Court said that a constitutional right should be protected only if it is in the text or part of its original meaning or safeguarded by a long unbroken tradition. The Court looked to abortion regulation going back to English common in law in concluding that there is no constitutional protection for abortion rights.

In Kennedy v. Bremerton School District, in ruling in favor of a high school football coach who wanted to pray on the field after games, the Court said that in determining the meaning of the First Amendment's religion clauses, "the line that courts and governments must draw between the permissible and the impermissible has to accor[d] with history and faithfully reflec[t] the understanding of the Founding Fathers."

Although only three of the justices - Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett - describe themselves as originalists, all six of the conservative justices write in these terms and sign on to ardently originalist opinions. Originalism once was thought of as a dangerous, fringe theory of constitutional law. In 1987, Judge Robert Bork was rejected by the Senate for a seat on the Supreme Court by the largest margin of any nominee in history because his originalist views were deemed unacceptable.

Now, though, originalism is in its ascendancy of the Supreme Court and likely will be for years to come. I am baffled why anyone would want the Constitution to mean today exactly what it did when it was adopted. The world of 2022 is vastly different from the agrarian slave society in 1787. In terms of the major rulings of last term, it makes no sense to look to 1791 when the Bill of Rights was adopted to decide whether the government has the power to regulate the weapons of today, or to decide if a football coach at a public school can pray on the field after games, or to the eighteenth and nineteenth century to resolve whether there is a right to abortion since it was not then a safe medical procedure.

Conservatives claim that originalism is desirable because it constrains the justices. That's nonsense. Unless one believes that the Framers and current Republican ideology were the same, it is clear that what is happening is that the conservative justices are reading their value choices into the Constitution and then writing their opinions in originalist terms to pretend that they are doing something else.

Moreover, even the self-avowed originalist justices are quick to abandon originalism when it does not get to the result they want. For example, in Shelby County v. Holder, in 2013, the Supreme Court declared unconstitutional a crucial provision of the Voting Rights Act that required that states with a history of race discrimination in voting get preapproval before significant changes in their election systems. The Court said that the law was unconstitutional and violated a principle of equal sovereignty that Congress must treat all states the same. But this cannot be justified based on originalism; it is not in the text and the Congress that ratified the Fourteenth Amendment did not believe there was such a constitutional requirement since it created military rule over the South as part of Reconstruction.

On Oct. 31, the Court will hear two cases about whether to overrule decades of precedents allowing colleges and universities to engage in affirmative action. From an originalist perspective, it should be decisive that the Congress that ratified the Fourteenth Amendment also adopted race-conscious programs, like the Freedmen's Bureau. But I predict the conservative justices will ignore this history in ending affirmative action.

Most of all, though, we should be frightened by what originalism means. Under originalism, Brown v. Board of Education (1954) and Loving v. Virginia (1967) were wrongly decided. The same Congress that ratified the Fourteenth Amendment also voted to segregate the District of Columbia public schools, belying any claim that the Framers of the equal protection clause meant to outlaw segregation. And laws prohibiting interracial marriage were common until well into the twentieth century; sixteen states still had such laws in 1967. Justice Antonin Scalia said that the equal protection clause did not apply to sex discrimination because it was intended just to be about race. Although the Court won't overrule these decisions, originalism will provide no protection against discrimination based on sexual orientation or gender identity.

Countless rights have been protected by the Supreme Court even though they are not in the text or part of the original meaning. In a concurring opinion in Dobbs, Justice Thomas expressly urged the Court to overrule the precedents protecting the right to purchase and use contraceptives, the right to engage in private consensual adult same-sex sexual activity, and the right of marriage equality for gays and lesbians.

Justice Alito's majority opinion in Dobbs said other rights are not in jeopardy because they do not involve potential life. But no one should be sanguine about this reassurance. The originalist methodology set out in Justice Alito's opinion makes all of these rights impermissible. Indeed, Justice Alito vehemently dissented in the marriage equality cases, United States v. Windsor and Obergefell v. Hodges. Does anyone have the slightest doubt that he would overrule them if given the chance?

Originalism developed in the 1970s as a way for conservatives to criticize the liberal decisions of the Warren Court and then to attack Roe v. Wade. If Hillary Clinton had won the presidency in 2016 and had picked three justices for the Court, originalism would have been relegated to dissents and law review articles by conservative law professors. But the three justices picked by Donald Trump ensure a conservative majority and the triumph of originalism for years to come.

It is imperative to realize that this is an emperor with no clothes. Originalism is no more than a guise for conservative justices to justify their very conservative results in constitutional cases. We all should be afraid of what this will mean for our constitutional rights in the years to come.