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Illegitimate Originalists

We hear a lot about "originalism" these days. Right wingers on the Supreme Court claim it is a philosophy of constitutional interpretation and invoke it to justify their preferred results. They say they are merely implementing the meaning of the Constitution's provisions as they were understood and intended to be understood by the generation of men who wrote and ratified that document. They contrast this with other approaches which find sufficient flexibility in the Constitution’s language to accommodate changing social, technological, and economic realities. I'm not going to discuss here just why Originalism is not only stupidly rigid, but dishonest to the point of fraudulence. Rather, I'd like to present one glaring example of where it can take us.

The conventional wisdom is that the original Originalists were Robert Bork, nominated for the Supreme Court in 1987 by Ronald Reagan and rejected by a Senate that found his Originalist views offensive, and his younger colleague Antonin Scalia, who made it onto SCOTUS in 1986 despite his own Originalism in part because he had not made so much noise about it as had Bork. (Among other absurd and pernicious nonsense, including Bush v. Gore, Scalia is the perpetrator of the absurd Heller decision, hallucinating - on the basis of a complete misunderstanding of what a militia was and what it meant in revolutionary times to "bear arms" - an almost limitless Second Amendment right of individuals to keep guns in their homes.)

But Originalism goes way back beyond the Reagan era, at least as far back as 1857. In that year's Dred Scott decision, Roger B. Taney, writing for seven of the Court's nine members, held on Originalist grounds that "a negro whose ancestors were imported into this country and sold as slaves" cannot be a citizen of the United States:

The question before us is whether [negroes whose ancestorswere imported into this country and sold as slaves] compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word "citizens" in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.

Just as prescribed by the Originalists on today's Court, for example in the Dobbs decision where they pretended to be able to find no eighteenth-century acceptance of abortion, Taney (not a historian) constructed a lengthy judicial and political "history" to support his horrible, white supremacist views. Almost needless to say, his historiography was tendentious and fallacious. That's what you get with Originalism: bondage to a vision of the past cherry-picked to serve latter-day privilege, and a constitution not worth having.