Originalism (Re)Considered


The late Justice Antonin Scalia famously supported the legal doctrine of “originalism” as a justice of the United States Supreme Court. WC has criticized both Justice Scalia and originalism in earlier posts, but the recent attempts by the new Justice Neil Gorsuch to insert originalism into oral argument on the gerrymandering case brings the issue back into discussion.

It’s easy to expose the intellectual bankruptcy of originalism. Consider, as an example, the Second Amendment.

When the Second Amendment was written the state of the art for firearms – those arms that citizens were to “keep and bear” – was the muzzle-loading long rifle. A skilled soldier might reload and fire a second shot in as little as one minute. It had a range of perhaps 80-100 yards, perhaps twice that in the hands of a highly skilled marksman.

Reports from analysis of recordings of the slaughter in Las Vegas last week suggest firing rates in the range of seven hundred rounds per minute, more than ten shots per second. The madman shooting from the hotel in Las Vegas was murdering people from a distance of 400 yards.

Any attempt to take the Founding Fathers’ understands of “arms” and apply them to a modern weapon is nonsensical. James Madison couldn’t have imagined the firepower that this one lunatic had in his hotel room. How can you sensibly, credibly talk about the Founding Fathers’ “original intent” when the subject is beyond their conception? Originalism, as “original meaning,” emphasizes how the text would have been understood by a reasonable person in the historical period during which the Constitution was proposed, ratified, and first implemented. Originalism, applied honestly, would extend the Second Amendment to a Kentucky long rife and no further. Not a weapon that can fire hundreds of times faster at multiples of range.

Which takes us to the oral argument in Gill v. Whitford, about the partisan gerrymandering in Wisconsin. Newbie supreme court justice Gorsuch interjected, “Maybe we can just for a second talk about the arcane matter of the Constitution.” It takes a lot of gall to imply in a comment during oral argument that the SCOTUS – whose focus is largely the U.S. Constitution – isn’t focused like a laser beam on the Constitution. Gorsuch has gall. Because he then proceeded to lecture his fellow justices, in the guise of a question to counsel, on the limits of federal authority to regulate state elections.

Justice Ruth Bader Ginsburg, in her Brooklyn accent, bitch-slapped Justice Gorsuch down. “Where did ‘one person, one vote’ come from?” she grumbled. Long-time court observer Jeffrey Toobin reports there might have been an audible woo that echoed through the courtroom. Ginsburg’s comment shut Gorsuch up for the rest of the argument on the case. Because, of course, there is a rich body of case law that establishes the basis for the SCOTUS to protect the 14th and 15th Amendments by limiting the powers of individual states.

Gorsuch and the whole originalist crowd ignore circumstances, precedent and history with their absurd insistence on projecting their view of the Founding Fathers into modern society. And WC finds their selective use of “originalism” – ignoring their pet doctrine when it suits their purposes, as in the case of the 2nd Amendment – even more offensive.

It’s not “conservative,” It’s “purposive.” And it is nonsense.

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