What the Hell is Originalism?

 As a constitutional theory, originalism has been rattling around in the minds of conservative thinkers since the times of Ronald Reagan.  It is a theory that claims that once written, our Constitution should be interpreted in a manner that represents the original thinking of its authors.  For that to be the case, you would have to have an intimate background in our nation’s history and the life and times of eighteenth-century America.

It is a wholly flawed concept to think that the intent and mindset of James Madison and thirty-eight of his friends would be cast in stone and forever interpreted from their viewpoint.  On the contrary, the Constitution was seen as a living document that would evolve as needed.  It would seem that “originalism” is merely an excuse to justify conservative opinions, even if it requires linguistic contortions of original intent.

In the eighteenth century, the phrase “a well-regulated militia” was an easy concept that gave the states the right to organize armed citizens for the common defense.  If history is to be our guide, the states back then did regulate gun ownership and confiscated guns from individuals who were thought to be a menace to the public or disloyal.  In striking down New York State’s century-old law, the Supreme Court went back to another originalist decision, that of District of Columbia v. Heller which interpreted “militia” to mean individual.  The majority opinion written by Justice Thomas said that such regulations need to be consistent with the nation’s historical traditions.

As a gun owner myself, I am not taking up the cause of gun regulations in New York, I am merely pointing out the erroneous interpretation of the court using originalism as a basis for their decision.  Originalism is a wholly flawed concept and should not be used to justify legal opinions.

In another example of flawed logic, the court went to the Fourteenth Amendment to argue that there was no provision therein for women to control their own bodies.  Justice Alito based this on the fact that in 1868 (when 14 was written), most states banned abortion.  The problem with this originalist logic is that in 1787 when the Constitution was ratified, abortions were allowed under common law until about the second trimester.  The actual timeframe was called “the quickening” when a woman felt the fetus move or kick.  The only person who could make that determination was the woman herself.  Under English and colonial courts, if a woman testified that her fetus had not been “quick” she was held harmless of charges.

Abortions were only outlawed in the mid to late 19th century largely in response to male doctors trying to delegitimize midwives.  If we are to hold with the originalist mentality, such laws would be illegal.  You can’t cherry-pick and hold the original constitution inviolate in one decision and then fast-forward in history to the 1850s for another decision.

Conservative convenience will use originalism when it makes their point but will abandon it when it doesn’t suit their purpose.  It is but another example of politics using whatever tool may be available to support their desired outcome.