OPINION: “Originalism” makes us Gaslighting | opinion
The recent setting aside of the Roe v. Wade and Casey v. Planned Parenthood by the Supreme Court has shattered the traditional notion of the nation’s highest court. SCOTUS was previously viewed by scholars and the public as the less political branch due to its fact judicial independence and tendencies towards consensus has now become another victim of the increasing polarization of the political elites. Even more farsighted in my thoughts, as well as my mate writerhowever, is the self-proclaimed “originalism” of a body of judges.
Originalism is a legal philosophy formed by Justice Scalia in response to perceived legal activism by SCOTUS. This philosophy states that when dealing with a constitutional question, one must refer to the law as originally intended. Consequently, judges draw heavily on the history and legal debate surrounding the law at the time of its writing. Of the nine members of the court, judges Thomas, Gorsuch, Kavanaugh, Alito and Barrett have all declared that they are originalists, and their voting results appear to support these claims.
At first glance, a philosophy that says we should just stick to the text of the Constitution, as intended, is not so far-fetched. But a closer look reveals the cracks in the theory.
Two recent decisions have illustrated these cracks. The first, Dobbs v. Jackson Women’s Health Organization, shows a shocking lack of awareness of women’s legal history, even though its impact is felt most strongly by women. The second, New York State Rifle Association Inc. vs. Bruencompletely ignores the scholarly debate surrounding the Second Amendment and attempts to politicize the story.
In Dobbs, Judge Alito stated, “The right to abortion is not deeply rooted in the history and tradition of the nation.” In New York Rifle, Judge Thomas said something very similar about an individual’s right to own and bear a gun, saying : “The government must demonstrate that regulation is consistent with the nation’s historical tradition of firearms regulation.”
Alito claimed that “three-fourths of the states made abortion a crime at any stage of pregnancy” and “until the second half of the 20th century such a right.” [to abortion] was totally unknown in American law” in Dobbs. The problem with this claim is that until the mid-20th century, the notion of women as equal citizens was unknown in American law and society.
Property rights for single women did not arrive in some states until the early 19th century. Married women could not control their personal finances in many states until the late 19th century. Women did not retain the right to vote until 1920. For poor, uneducated and/or non-white women, this right is still challenged to this day. Of the many laws that suppress women’s right to bodily autonomy, this was notorious Comstock Laws of 1873, which banned all “obscene” material. This massively reduced access to things as small as romance novels to things as important as contraception.
How can Alito claim to have history on his side when the laws he mentions never had women’s approval? The laws to which he refers were written to actively suppress women’s political influence to an almost negligible level. They have no basis in modern science and actively oppose it XIV Amendments Equality clause – they should not be used to determine the constitutionality of abortion.
In case of New York Rifle versus Bruen, the court found historical evidence of an individual right to own guns and no history of regulation based on an example of the need for one. However, looking at the second amendment, the text shows no right to self-defense or the right to bear arms. As a matter of fact, Mr. William Blackstonea leading common law thinker, insisted that rights are “bipartite,” that guns inherently come with an obligation to use and own them properly.
The existence of a right therefore does not conflict with regulations for the protection of the general public. For some scholars, which means property is only within the confines of a trained militia. When examining the legal history of the United States, there are many places to look strict restrictions across the country on gun ownership.
Judge Thomas uses his originalism as an excuse to automatically block New York from enacting their gun laws, in part because he believed there was no history to support such a law. Thomas was right when he said the law was tremendously clear in its application, but his claim to have history on his side is fallacious and false. The story doesn’t take sides, it just tells what happened.
These judges are not “originalists”; they are would-be autocrats. Their form of originalism burdens history regardless of public opinion, modern science, legal philosophy, and political philosophy. She fervently seeks to collectively hold our nation back.
While it is important to consider the original purpose of the Constitution as the basis for the decision, it is absurd to look to our history for answers. Our history is muddy, covered in dark times as well as distinctly light ones. We have a history of subjugation, discrimination and bigotry. But we also have a history of resilience, courage and progress. SCOTUS decisions should never be based solely on American history, as that simply allows the court to single out history to fit into their agenda.