OPINION: Originalism is bunk


The conservative majority on the U.S. Supreme Court and a phalanx of ultra conservative lawyers have decreed that originalism is now the law of the land. Originalism, as defined by Merriam-Webster dictionary, is a legal philosophy that the words in documents and especially the U.S. Constitution should be interpreted as they were understood at the time they were written.

To quote Washington Post writer Ruth Marcus in her Dec 1, 2022, opinion piece: “Originalism is bunk.” I concur with Marcus’ sentiments, but her piece would have benefited from the words of former President Ulysses S. Grant. And the Supreme Court would do well to heed his counsel.

President Grant, the Union hero of Civil War victory, said in his 1885 Memoirs:

The framers were wise in their generation and wanted to do the very best possible to secure their own liberty and independence, and that also of their descendants to the latest days. It is preposterous to suppose that the people of one generation can lay down the best and only rules of government for all who are to come after them, and under unforeseen contingencies…We could not and ought not to be rigidly bound by the rules laid down under circumstances so different for emergencies so utterly unanticipated. The fathers themselves would have been the first to declare that their prerogatives were not irrevocable.

Grant was president when the 15th Amendment, which prohibited denying the right to vote based on race, color or previous condition of servitude was adopted. The framers of the constitution, adopted just 81 years earlier, could not have conceived of such an idea since the constitution in its original format acknowledged slavery and in fact counted slaves as three-fifths of a person, so less than fully human.

Grant, while no jurist, showed a far greater understanding of constitutional law than our current crop of so-called conservative, originalist justices and their brethren in the Federalist Society who seek to impose their view of the dead hand of the past on today’s society. That is the last thing the founders would have wanted as expressed by President Grant, who held a commanding role in the greatest convulsion of our nation, the Civil War.

Our concept of free people governing themselves and a limited government have evolved.

Free people no longer means just white men of property as it did in 1789. It now includes people of color, women and poor people. It means that government will (or perhaps may is a better choice of words) enforce the rights of people of color and poor people and women.

It means that working people have the right to organize and demand fair pay and decent working conditions in exchange for their labor. All concepts foreign to the world of 1789.

The constitution was hammered out after months of arguments, debates and bitter dissent by brilliant men trying to develop a system of government which would work better than a monarchy. They operated within the societal norms of the late 18th Century and of necessity they agreed to compromises that are inconceivable today.

An example of this is Article I, Section 9, Clause 1 of the original Constitution which prohibited Congress from passing laws that banned importation of slaves until the year 1808. Or Article IV Section 2 which required that a slave escaping to a free state would not be released from bondage but rather must be returned upon demand to the owner.

With its so-called originalism doctrine, the conservative majority has set the stage to dismantle labor rights, women’s rights, civil rights, environmental regulations and a host of other protections that do not fit in their radical right agenda.

President Grant would have been as appalled by today’s originalism doctrine as he was by the reactionary voices urging originalism in the 1880’s Jim Crow era. He would call it bunk.

(William Enyart is a former U.S. congressman for Illinois’ 12th District. Willie Lyles III is currently Congressman Jim Clyburn’s senior advisor and legal counsel.)

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