Everyone knows about Dobbs v. Jackson Women’s Health Organization. In June 2022, the U.S. Supreme Court declared that the U.S. Constitution does not protect the right to an abortion. The holding overruled Roe v. Wade, which had guaranteed the constitutionality of abortions for 50 years.
Lesser known, however, are the other landmark cases that the Supreme Court handed down in June 2022. In addition to destroying Roe, the Court found that the Second Amendment protects public carriage of firearms; that the Environmental Protection Agency cannot regulate coal plants’ greenhouse-gas emissions; and that a public high school football coach cannot be banned from publicly praying on the field after games.
Even more obscure is the judicial philosophy behind each of these decisions: originalism.
Originalists believe that the Constitution should be interpreted how it was intended to be when it was written. They argue that this limitation stops courts from deciding cases based on personal beliefs, which they claim non-originalists do. They call it biased to rule that although legal in the 1790s, the nation’s “evolving standards of decency” now outlaw executing children. They ignore that historical interpretation is just as biased.
Originalism staunchly ignores perhaps the most basic platitude of history: Things change.
In New York State Rifle and Pistol Association v. Bruen — the case that expanded the Second Amendment to public carriage — Justice Clarence Thomas held that the only constitutional gun regulations are ones that align with gun regulations in 1791 and 1868 (the ratification years of the Second and Fourteenth Amendments). This is a supremely moronic way to protect the American people’s public safety, even for such a spectacular numbskull like Clarence Thomas. The regulations necessary to protect people from flintlock muskets that fired, at absolute most, four (often inaccurate) rounds per minute should have no bearing on regulations of today’s semi-automatic weapons that can fire 20 rounds in under four seconds.
An inability to account for technological development is only the beginning. Clarence “My Wife Tried to Overturn the 2020 Election” Thomas argues that the First Amendment’s Establishment Clause — “Congress shall make no law respecting an establishment of religion” — only stops religious establishment at the federal level. If a state wants to tax its citizens to support The Church of Jesus Christ of Latter-day Saints — or, presumptively, sharia law — Thomas sees no issue. According to him, the First Amendment doesn’t require equal treatment of religion and secularism, only that the government doesn’t favor any one religious sect.
If you ignore that the Establishment Clause was incorporated to the states in 1947, Thomas has a point. At the time of ratification, multiple states had publicly-funded established churches; Massachusetts didn’t stop being officially Congregationalist until 1833.
The sectarian states of the past that Thomas so greatly adores were despicable, brutal societies that no modern American would consent to live in. In Episcopalian Maryland, first-time blasphemers were rewarded with a hole bored through the tongue with a hot iron. By your third offense, you were executed. That’s one hell of a tolerant, pluralistic society.
Tolerance and pluralism are unequivocally popular ideals, which is why no one disagrees with Brown v. Board of Education’s ruling that segregated public education is unconstitutional under the Fourteenth Amendment. Yet the very Congress that approved the amendment — and the one before it — voted to segregate schools in Washington, D.C. An originalist interpretation of the Fourteenth Amendment therefore cannot possibly include desegregation.
Brown so obviously exposes originalism’s abhorrent morals that Justice Antonin Scalia, its most famous freedom fighter, made no attempts to argue. Instead, he called bringing up the case “waving the bloody shirt of Brown.”
Originalism has another, almost comical, problem. The judicial branch’s most formidable power is judicial review, which gives it the authority to declare acts by the legislative and executive branches unconstitutional. But an originalist reading of Article III of the Constitution, which enumerates the powers of the judiciary, is absolutely silent about judicial review. It’s simply not in the Constitution. In fact, judicial review wouldn’t be established until 1803, in Marbury v. Madison — almost 15 years after the Constitution was ratified. An originalist reading of the Constitution destroys originalism.
Regrettably, it doesn’t matter what I think. The highest court in the land is firmly in an incoherent philosophy’s senile grip. And what originalist justices have done so far has been mere toe-dipping.
In his concurring opinion in Dobbs, Thomas wrote that the substantive rights — fundamental rights upon which the government cannot infringe — of contraceptives, same-sex intercourse and same-sex marriage were “demonstrably erroneus” and should be overturned. Notably, the substantive right of interracial marriage — which was established two years after the right to contraception — went unmentioned. Thomas skipped over it, because he has a conflict of interest: His insurrectionist wife is white.
The Supreme Court’s originalist bloc is just revving its engine. What we’ve seen so far is nothing. What’s coming will be incomparably worse.
