Why originalism endangers the Supreme Court
LINDSEY GRADOWSKI: With the confirmation of Justice Amy Coney Barrett, the Supreme Court gains yet another originalist voice. Joining the ranks of Thomas, Gorsuch, and (arguably) Kavanaugh, Barrett will cement the originalism’s foothold in the court for decades to come. Putting this incredibly limiting jurisprudential philosophy at the forefront of the Court’s decision-making is narrow-sighted and dangerous, and could have far-reaching implications on American law.
Originalism is the philosophy that the Constitution is a fixed rather than living document. When an originalist justice considers a constitutional argument, they look at the literal language of the document, and then if necessary, consider a problem through the eyes of the founding fathers. However, freezing the Constitution in 1787 is not a stable method of governance. One need not look hard to start seeing holes in originalist thinking. Surely, the founding fathers could never have predicted airplanes or the Internet, and it would be unreasonable — if not impossible — to properly adjudicate a case about the Air Force or Internet security based on the original meaning of the Constitution. Here, originalism falls short.
There is another important reason why it is critical for the Constitution to be viewed as a living, breathing document. It is highly likely that the founding fathers would have vastly different views on social issues of today than the average American. Surely, Thomas Jefferson would see no problem with segregated schools. It is unlikely that John Adams would advocate for marriage equality. Yet today 67% of Americans support same sex marriage and racial equality movements like Black Lives Matter. American democracy is founded on the principle that the government is by the people, for the people. We must let modern voices guide judicial decision-making, not stay stuck in the ideals of 1787.
And the founding fathers never intended for their words to be taken as the final authority forever. There are parts of the Constitution that are intentionally, and sometimes frustratingly, vague. What is “cruel and unusual” punishment? What are “necessary and proper” laws? The framers knew that America would not remain stagnant, and they used wording that could shift and grow with the changing times. We do not nominate the sharpest legal minds in America to the highest, most powerful court in the land to regurgitate the text of the Constitution verbatim.
It is precisely the job of judges and justices to interpret the foundations the framers laid and apply it to modern cases.
A Supreme Court dominated by originalist viewpoints is sure to leave its mark on several high-profile cases that are set to appear before the court soon. One example of this is the constitutionality of the Affordable Care Act (ACA). Justice Barrett has previously stated her disagreement with Chief Justice Roberts’ swing-vote decision to uphold the ACA in 2012, citing the originalist claim that the ACA pushes federal taxing power too far beyond the founders’ intentions. However, in 1787 there was no system of organized health care at all for the founding fathers to comment on. So where does the originalist conclusion derive from? As with desegregation and the Internet, we have seen that just because something did not exist in 1787 does not mean it is unconstitutional.
All this is not to say that originalism is entirely without merit, but as it comes closer and closer to the forefront of the American justice system, it is important to understand and analyze it. Originalism ideals ask us to freeze the United States in the past. But the people that are being represented and governed are not from 1787, they are from 2020.
Thomas Jefferson once wrote after his presidency that, “laws and institutions must go hand in hand with the progress of the human mind.” Nobody in 1787 imagined that their document would be set in stone for 200 years. The founding fathers wanted to build a nation that would last long after their time, and they understood what such a feat entailed. Originalism threatens to stifle judicial progress and severely limit the rights of vulnerable populations for no justifiable reason. The Constitution must be allowed to evolve alongside society, protecting the rights and liberties of American citizens even as their needs change over time.