The New Originalist Lie
Originalism is a code word for "Racism," "Misogyny," and "Segregation." That's what's being said in the news and in the public square today after a contentious few days of confirmation hearings for Amy Coney Barrett. But the question is, is it true?
Some people will read the title of this article, and by the end, they will wonder if it wasn't a bait and switch, perhaps it was, but I hope that you'll stick with me, and if you agree, that you'll share and distribute this as I believe that this message is THAT IMPORTANT.
Let's start by defining "Originalism" shall we?
Originalism is the idea that the Constitution is written a specific way in order to maintain society in a certain way, and that any changes to that way, require a changing of the document to reflect it. In other words an AMENDMENT. That's important because we'll get back to that later.
It's opposite, "Evolving Jurisprudence," holds that the Constitution is a loose definition of how society is intended to be run, and that it is up to judges to "interpret" it and its application to modern life by applying its "principles" without being tied to its exact wording, per se.
So, now that we have a common definition on which to stand, let's talk about the latest lie against Originalism that has surfaced recently. That lie says that embracing Originalism means that you are embracing the "original society" which included things like non-suffrage for women (no voting rights), slavery, segregation, and many other evil and heinous ideas that have been thoroughly repudiated. In fact, they have been so thoroughly repudiated, that two Amendments were passed, the 14th and 19th, which dealt specifically with these issues.
Now, what "living constitutionalists" would have you believe is that originalism is responsible for the "Jim Crow" and other societal break downs that occurred after these amendments passed, but to say that is to completely misunderstand Originalism. Originalism holds that the Constitution must be interpreted EXACTLY AS WRITTEN, and as such, when an amendment is passed, IT BECOMES THE WAY THAT IT IS WRITTEN.
In other words, to violate either the 14th or 19th Amendments would be a gross violation of Originalism. So it holds that if one were to attempt to deny a black person the right to vote, they would be in complete and total violation of Originalism as the CONSTITUTION now is written SPECIFICALLY to outlaw such behavior AS IF IT WERE WRITTEN BY THE FRAMERS THEMSELVES.
That is why the Amendment process is so important. Because of it, both the citizenship and voting rights of Black Americans and Women are protected. Yet, because an amendment hasn't happened for other "interpretations," they are at the mercy of judicial fiat. Why are we having to talk about "Super Precedents?" Because there was no Amendment passed, or even legislation for that matter, to make it law, but only a judge's "interpretation" that can be re-"interpreted" by another judge. Originalism protects us from EXACTLY what we're seeing now which is people scrambling to protect their own pet judicial fiats because they allow them to force their will upon their opponents whom they know they could never get a constitutional amendment past.
But there is another component to originalism that could be considered the "engine" that makes it run. That "engine?" Federalism.
Federalism, sometimes call states rights, is the key to originalism. It holds that whatever isn't in the Constitution, and that you can't get passed in an amendment process, is/becomes a states rights issue.
Really? So all of these judicial fiats just go away? Well, yes, and no, and kinda, all at once.
Let's take abortion. Held in place by a judicial fiat "interpretation" created during Roe v. Wade, abortion has become one of the hottest topics in American politics. But the question before us is, does it have to be?
People always say that if Roe v. Wade is struck down, that abortion will be illegal across the country overnight. That.. is... a... lie.
Here is what would ACTUALLY happen overnight if Roe v. Wade were overturned tonight at 11:59 PM tonight:
1) The Federal guideline requiring all states to allow for legalized abortion would expire, which means that each state would revert to its own laws on the state books with regards to abortion. A few states, such as California and New York, have already passed "just in case" laws to deal with just such an eventuality, so has Texas, but in the opposite way.
2) Most governors would have already drafted (since they knew it was coming) an emergency preparedness plan that helps to either phase in the new legal reality or to ensure that the current status quo continues in their state.
3) People would begin to migrate to states that agree with their views. Hard Core abortion proponents would move to states like California and New York. Hard Core pro-lifers would move to states like Texas and Oklahoma. Others would move to states that agree with their moderated or conflicting view of the topic.
The fighting over which side will be able to IMPOSE its will on the other would vanish almost overnight. And though we might castigate and demonize those who choose not to live like us, at least we would have the right to choose the reality in which we want to live. It's the same on almost ALL of the issues that we're dealing with right now. Marijuana (and other drugs), alcohol age, welfare payments, LGBTQ+ marriage, gender categorization, environmental policies, gas taxes, school curriculums and homeschooling, and so many more would all be done on a state by state basis where you can live in a state that is run how you want to live without having to force your lifestyle on others.
About the ONLY issue that I can think of that wouldn't be solved by this is immigration, but that's because that is a power designated specifically TO the Federal Government by the Constitution. Yet despite all of it's benefits, neither party really wants to embrace this philosophy as it requires them to give up their power and ability to bully other people into seeing the world, and living in it, they want that they want them to.
Yet, I believe that I have digressed quite far from the original point of this article, pun intended, no matter how necessary the information was.
The point of this article is to reassure people watching the ACB confirmation hearings that they are protected, by originalism, from things like Slavery, Segregation, and Discrimination based on biological sex. The AMENDMENTS guarantee that. Everything else is a state issue, and maybe if we saw it that way, we could save our Union.