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It's time we put originalism — and our Founding Fathers — to rest

York Dispatch editorial board

The flurry of U.S. Supreme Court decisions that, among other things, overturned the constitutional right to abortion are all grounded in originalism.

That is: The idea that judges should consider the intentions of the people who ratified the Constitution in 1788 above whatever the document has come to mean since. In this view, present-day values and interpretations are irrelevant.

It's an idea championed by former Justice Antonin Scalia, whose shadow looms large over the current Supreme Court.

"The Constitution that I interpret and apply is not living but dead," Scalia once told NPR. "It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted."

On its face, there's comfort in this idea.

We don't need to wrestle with tough decisions — all we need to know is written on that hallowed piece of parchment at The National Archives. We hardly need courts at all.

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Scalia's most prominent successor, Justice Clarence Thomas, used the originalist perspective to take aim at several more court precedents that weren't specifically protected by our founding fathers in 1788: decisions enshrining gay marriage and access to contraceptives.

But there's an obvious problem with all of this.

Our founding fathers were all wealthy White men who owned property. And a disturbing number of them owned slaves. A few of them might've been gay — there's a compelling case to be found in Alexander Hamilton's letters — but none of them were openly homosexual.

They could not have possibly envisioned a world shaped by the Internet, globalization or even mechanization. In 1788, the most commonly used contraceptives were made from pig intestines and the most widely available firearm was the flintlock rifle, which took a minimum of two minutes to reload.

The most damning fact undermining originalism, however, is this: The founders themselves didn't believe it.

In Federalist No. 40, James Madison — the Constitution's principle framer — wrote that the Constitution is "of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed."

he 235-year-old U.S. Constitution is extraordinarily resilient - and out of date. (Dreamstime/TNS)

Madison favored what many historians describe as a living document, one designed to be ambiguous enough to be amended and reinterpreted over time.

Even conservative justices concede (or at least they used to) that being an originalist is a tough row to hoe.

“Adherence to originalism arguably requires, for example, the dismantling of the administrative state, the invalidation of paper money, and the reversal of Brown v. Board of Education,” wrote Trump appointee Amy Coney Barrett, in a 2016 scholarly article. Brown v. Board of Education, of course, is the decision that eventually led to the integration of American schools, certainly not something our founding fathers could've envisioned.

"At least in the case of so-called super precedents — decisions that no serious person would propose to undo even if they are wrong — an originalist justice will not have to choose between fidelity and faint-heartedness," Barrett wrote.

Time, alas, makes fools of us all.

Flash forward to 2022 and Barrett is more than willing to undo a host of precedents under this misplaced fealty to dead men and their inherently limited view of the world.