ORIGINALISM AND PRESENTISM: IDEOLOGIES THAT FURTHER REND THE SOCIAL FABRIC – Part one

Originalism is a high-sounding doctrine applied to the interpretation of legal texts. In the hands of right-wing Supreme Court justices, it is a slippery concept serving to mask a reactionary agenda.

I have written often about the ominous reality whereby the public mind has been gripped by extremist ideologies. The result has been political tribalism, social division, and a breakdown of compromise and civil discourse. Ideologies, like avalanches that smother everything beneath them, are generalities that can blanket facts, details, and nuance. This does not foster democracy. In fact, it leaves our democracy hanging on a precipice and dangerously fragile.

Two ideologies that feed into this division, and have recently been covered in the press, are originalism and presentism. The first is embraced by sectors on the right; the latter has found favor with elements of the left. Unlike positions on abortion or guns, originalism and presentism find their places in more rarified and academic precincts of society.

Though reflective of positions situated on the poles of their respective fields, they are not parallel; their juxtaposition is admittedly contrasting apples and oranges. Originalism is a judicial term relating to the interpretation of legal texts, of greatest current interest pertaining to interpretations of the Constitution by the Supreme Court. Presentism is a method of understanding and interpreting history and is of greatest concern to professional historians. While debates around these issues transpire in circles generally removed from the public at large, their consequences have a profound effect on politics on the ground and help to stoke the divisions that so painfully divide society at this moment. Nor do I posit a false equivalence. The effects of originalism on the lives of Americans and on their rights are far in excess of whatever influence presentist interpretations of history convey. I bring them together solely because they respectively reflect and add to the extremist environment we find ourselves in.

With regard to the issues at hand, I do not claim expertise. I am neither a legal scholar nor a professional historian. But I am concerned with movements and trends that increasingly divide the American people.

In this essay, I want to comment on originalism. I will devote a subsequent piece to presentism.

Originalism has entered the news because of the extreme rightward turn of the Supreme Court. Clearly, all texts are subject to interpretation and the Constitution itself does not specify what mode of interpretation it requires. Through the centuries, it has spawned several. Originalism is among them and is usually contrasted with the theory of “living constitutionalism.” In briefest terms, originalists argue that the meaning of the constitutional text is fixed and that it should bind constitutional actors. Often originalists proffer the view that the meaning of the Constitution is found in the intent of its drafters and in the meaning of the text. Living constitutionalists contend that constitutional law can and should evolve in response to changing circumstances and values.

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The employment of the concept of “originalism” has gained currency only since the 1970s. It is a position almost exclusively held by conservative jurists and legal scholars, though has been noted that Hugo Black, a noted liberal Supreme Court justice, mostly likely subscribed to originalism.

Robert Bork, who became notorious for his part in the “Saturday Night Massacre” during Watergate, and for the virulent opposition he encountered when nominated by Ronald Reagan for a seat on the Supreme Court, is sometimes credited with being the grandfather of originalism. More recently, its most prominent expositor has been Antonin Scalia. When Justice Amy Coney Barrett joined the Supreme Court in 2020, conservatives could celebrate that the Court now possessed five avowed originalists. We could count among the others, Samuel Alito, Brett Kavanaugh, Neil Gorsuch, and needless to say, Clarence Thomas. The consequences of their jurisprudence on the rights of Americans and our politics can only be profound.

Originalism most likely emerged as a result of the rulings of the liberal Warren Court and its initiative to put breaks on what conservatives polemically referred to as “legislating from the bench.” Yet when looking at how the doctrine of originalism plays itself out, it is apparent that in the name of judicial conservatism and originalism, these reactionary justices are perpetrating the very excesses for which they condemned liberals.

Originalism has several meanings that are nuanced. Some assert that the Constitution needs to be interpreted on the basis of the text as written. Others contend that interpretation should be based on the intent of the Founders. Still others contend that the interpretations should flow from the way the articles were understood at the time of their drafting. When it comes to the Founders' intent, different actors harbored different intents. Moreover, the record of what their intentions were with regard to specific Constitutional articles is very limited. Despite differences, the originalist camp holds in common that the Constitution is a fixed and static document.

By contrast, the doctrine of living constitutionalism allows for departure from the text. In broadest terms, Senator Dianne Feinstein alluded to the spirit of this approach in her remarks during the confirmation of Neil Gorsuch to his position on the Supreme Court. Feinstein stated:

“I find this originalist judicial philosophy to be really troubling. In essence, it means the judges and courts should evaluate our constitutional rights and privileges as they were understood in 1789. However, to do so would not only ignore the intent of the Framers that the Constitution would be a framework on which to build but [would] severely limit the genius of what our Constitution upholds. I firmly believe the American Constitution is a living document, intended to evolve as our country evolves.”

In short, it was the Framers' very intent that interpretations of the Constitution would change to transcend their own original understandings of the Constitution as times and circumstances changed.

Feinstein is not the only one who finds originalism deeply troubling. In a scathing article in the July 2022, issue of The Atlantic, constitutional scholar, David Gans, wrote the following:

“Although conservative originalists have for years been touting their method as restrained, sensible, and tightly tethered to constitutional text and history, this term blew away such pretenses. If this is the great conservative originalism, then those professing it have finally and conclusively revealed it to be what many skeptics already considered it: a hollow edifice designed to hide an ugly and aggressive ideological agenda.” And that ideological agenda is an exceedingly regressive one that is transforming the American landscape with lightning speed and in directions that are exceedingly fractious and alarming. 

It is the appeal to originalism that has allowed reactionary justices on the Supreme Court to invoke “history and tradition” to conclude what the Framers of the Constitution allegedly intended. As Gans cogently observes,

“This is a radical Court dominated by conservatives who treat the past practices of state legislatures as determinative of the Constitution’s meaning, warping the broadly worded language that was meant to enshrine fundamental principles of liberty and equality in our national charter. This is a Court that insists it is following history and tradition where they lead, while cherry-picking the history it cares about to reach conservative results. These are damning moves for conservative justices who pride themselves on fidelity to the Constitution’s first principles.”

Invoking history and tradition as the basis for reaching conclusions as to which laws are constitutional is highly problematic. In the first instance, Supreme Court Justices are not historians. More significantly, “history and tradition” are capacious concepts that invite rampant cherry-picking.

The Dobbs v. Jackson Women's Health Organization case, which withdrew a woman's constitutional right to an abortion, the first time a right has been rescinded, invoked this skewed reasoning. Samuel Alito, who authored Dobbs, concluded that “liberty,” as guaranteed by the Fourteenth Amendment, is such a broad term that it is virtually an empty concept. Hence, Alito concludes that a person possesses only those rights that are explicitly cited in the Constitution. Since abortion cannot be explicitly found, one needs to turn to “history and intent” to interpret the Constitution's meaning. For Alito, this means searching state practice at the time of the ratification of the Fourteenth Amendment. As Gans notes, “Defenders of school-segregation laws, bans on interracial marriage, bans on abortion, sodomy laws, and bans on same-sex marriage argued that each of these practices was constitutional based on state legislative practice at the time of ratification. Alito draws on similar arguments to justify overruling Roe.” Alito's employment of history and tradition is an effort to bypass the liberty protections the Fourteenth Amendment was meant to guarantee. Gans supplies a very different history:

“Alito’s account of 'history and tradition' ignores the most salient aspect of the Fourteenth Amendment’s history: the horrific abuses that led the Framers of the Fourteenth Amendment to push through changes to the Constitution to broadly guarantee the protection of substantive fundamental rights. The through line from the abolitionist critiques of slavery to the debates over the Thirteenth and Fourteenth Amendments was the idea that slavery was built on the denial of bodily integrity, coerced reproduction and the rape of enslaved women, and the tearing apart of Black families. Alito’s sweeping condemnation of unenumerated fundamental rights ignores the fact that the Fourteenth Amendment sought to guarantee rights to bodily integrity and to marry and raise a family, and the right to decide for oneself whether, when, and with whom to form a family.

In short, reproductive freedom is in the Constitution. Alito simply refuses to grapple with the Constitution’s true history.”

It is the selective reading of history invoked by “originalist” judges that places in danger the right to contraception, to enjoy sexual intimacy, and marry the one we love regardless of sex. It is also primed to do away with any laws limiting less than absolute gun rights and is working to ensure that the separation between church and state is a violation of religious freedom. The invocation of originalism sounds high-minded. It is not. It is a mask, a strategy, to fulfill a right-wing ideological agenda devoted to taking away rights that we enjoy as a free people.

Those who cherish an enlightened, democratic, and decent society should not be fooled.