The U.S Constitution has been in action since the end of the 18th century, and it remains the oldest active Constitution. To survive that long, it has had to be adaptable. Indeed, it has been active since a time with horse-drawn carriages to a time with self-driving cars; from a time where WASPs, White Anglo-Saxon Protestants, governed a motley 13 colonies to a time where a rising number of minorities head a global superpower. Yet, there are those in our justice system who do not believe the Constitution to be a ‘flexible’ document. A portion of those who think this follow a specific legal philosophy: originalism. It was a view held by Justice Antonin Scalia, is by Associate Justice Clarence Thomas, and now, by Justice Amy Coney Barrett.
Originalism is the belief that the Constitution has a fixed meaning, a meaning determined when it was adopted, and cannot be changed without a constitutional amendment; and should anything be ambiguous, they should be determined by historical accounts and how those who wrote the Constitution would have interpreted it. By its very definition, originalism seems to defy reason. The Constitution itself is a relatively vague document. The Founding Fathers did not employ the use of extraordinarily binding and exact words; instead, they opted for ‘probable cause,’ ‘cruel and unusual’ and more. For a good reason, there is simply no way the Founding Fathers could have foretold the multitude of cases that would employ the Constitution’s words to reach a decision. Indeed, Justice John Marshall, a founding father and Supreme Court Chief Justice, understood that the Constitution was “meant to be adapted and endure for ages to come.” Going against this doesn’t just go against what the founding fathers intended, but also endangers the rights of many U.S citizens.
Originalism is not without benefits. It forces its followers to follow the Constitution rather than their own beliefs; it ensures that Republican or Democrat, the Justice follows the Constitution. In its essence, from a judicial standpoint, ‘sticking to the Constitution’ seems to be a good idea, but there are problems.
The problem lies in the fact that originalism aims to interpret laws as our Founding Fathers interpreted it. Our Founding Fathers who, despite writing ‘We The People’, built this Constitution for a particular group of people: land owning white males. They did not write the Constitution for women, for people of color or LGBTQ+ individuals. To this end, one could look toward textualism: a philosophy that states that the Constitution should be interpreted by considering only the law’s words and nothing else. But like originalism, textualism has problems.
The problems lie in the fact that the Constitution does not explicitly provide rights that we now know are natural and human: the right to marry, the right to bodily autonomy, even the right to breathe. After the nomination of Amy Coney Barrett, many minorities, especially LGBTQ+ individuals, believe their rights may be in danger. And unfortunately, they are right. The Constitution does not explicitly state that everyone has a right to marry; thus, Obergefell v. Hodges’ decision could be overturned in the name of originalism. Roe v. Wade may also be in danger as the Constitution does not expressly provide the right to bodily autonomy. In this way, textualism would not work; instead, it would serve to rob people, mainly minorities, of their fundamental rights.
There may be a time in the future when textualism will not put the natural rights of humans in danger; a time when the morality of people or the law protects the right to marry, the right to breathe and all other fundamental rights. But that time is not now. Change is needed; the United States needs to interpret laws to ensure that people are not robbed of their inalienable rights. Until then, history is something we must learn from but not something we should imitate. Until then, we must be wary of originalism and textualism and the danger it could bring; we must be mindful of those who follow originalism so rigorously and what can result from their decisions.