Monday, October 26, 2020

Why Constitutional "originalism" is a bogus rightwing ideology

Historian Heather Cox Richardson, who has thrown herself this year into the role of public intellectual and insightful critic of Trumpism and the assumptions of white supremacy, teamed up with Maine Sen. Angus King, Jr., to take on the rightwing legal doctrine of "originalism," Amy Coney Barrett’s Judicial Philosophy Doesn’t Hold Up to Scrutiny The Atlantic 10/25/2020. They open with a good summary of the basic flaw in the idea "originalism," that when the text of the Constitution isn't crystal clear on an issue, judges should look to what the Framers had in mind when they produced the original text:
In some cases, interpreting the Constitution with an originalist lens is pretty easy; for example, the Constitution says that the president must be at least 35 years old (“35” means, well, 35), that each state has two senators (not three and not one), and that Congress is authorized to establish and support an Army and a Navy. But wait a minute. What about the Air Force? Is it mentioned in the text? Nope. Is there any ambiguity in the text? Again, no. It doesn’t say “armed forces”; it explicitly says “Army” and “Navy.” Did the Framers have in mind the Air Force 115 years before the Wright brothers? Not likely.

So is the Air Force unconstitutional, even though it clearly fails both prongs of the “originalist” test? No, a more reasonable and obvious interpretation is that the Framers intended that the country be protected and that the Air Force is a logical extension of that concept, even though it wasn’t contemplated in 1787. This isn’t judicial lawmaking; it’s judges doing what they’re hired to do.
And they give a summary of what the real game of "originalism" is:
Originalism is an intellectual cloak drummed up (somewhat recently) to dignify a profoundly retrogressive view of the Constitution as a straitjacket on the ability of the federal government to act on behalf of the public. Its real purpose is to justify a return to the legal environment of the early 1930s, when the Court routinely struck down essential elements of the New Deal. Business regulation, Social Security, and Medicare? Not so fast. The Affordable Care Act, environmental protections, a woman’s right to choose? Forget it. And this despite the Constitution’s preamble, which states that one of its basic purposes is to “promote the general welfare.”
The Atlantic is publishing a series of articles in conjunction with the National Constitution Center that they label The Battle for the Constitution, of which the Cox-King piece is one.

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