A number of Supreme Court justices in recent times and in decades past have claimed to be originalists. In case you didn’t go to law school, the gist of originalism is that the text of the Constitution should be given the meaning it had when it first became law without reference to the contemporary context.
Originalism has a certain superficial appeal. It makes sense intuitively that maybe laws should indeed mean what they meant when they became law: nothing more, nothing less.
But if you think it through a little, the concept of originalism as a judicial philosophy breaks down pretty quickly. For one thing, it’s extremely arrogant to claim to be able to know exactly what the founders were thinking almost 250 years ago about each individual line of text in a historical document.
The original states, with the exception of Rhode Island, selected 70 individuals to attend the Constitutional Convention (which ultimately resulted in the same Constitution we have to this day). This being the late 1700s, not all of the selectees made it: only 55 of them attended the sessions of the Constitutional Convention. When pen hit paper, 39 people actually signed the Constitution.
Some of these people hated each other. Some of them waged an intellectual war amongst themselves for decades as to what the Constitution meant and where this founding document should be taking the country. Thomas Jefferson and John Adams, for instance, were bitter rivals who vehemently disagreed on just about everything (later in life, as old men, they did make up through correspondence).
You can’t assemble 39 people in a room and get them to all agree on the meaning of anything, especially not when a number of them are at each other’s throats. Nor can you discover just through sitting around pondering while wearing a robe what 39 people hundreds of years ago all agreed upon. You can sure imagine it though.
The Constitution meant different things to different people back then, just like it does today. Some portions of the text were intentionally left vague for exactly that reason (and to allow room for interpretation as society changed). That doesn’t mean the Constitution had no meaning, but it does make it incredibly misguided for today’s justices to claim to be able to discern one unified intent underlying snippets of text signed onto by dozens of different people hundreds of years ago.
If you can’t be dissuaded from trying to apply an originalist judicial philosophy though, the one thing you definitely cannot do is apply an originalist judicial philosophy. Article III of the Constitution is the part that establishes a Supreme Court, and it says zero about that Supreme Court getting to interpret the Constitution or being empowered to strike down federal laws.
The last state to ratify the Constitution got it done on May 29, 1790 (by that time we’d already been operating under the Constitution for well over a year). More than a decade passed, however, before the Supreme Court got to start interpreting the Constitution.
The Supreme Court did not obtain this awesome power from any explicit text of the Constitution. No, it granted this power to itself with the Marbury v. Madison decision and the very liberal interpretations contained therein.
So, if a justice doesn’t think the right to an abortion should be protected because the word “abortion” doesn’t appear in the Constitution, then that same justice shouldn’t be saying shit in the first place, because the Constitution sure doesn’t say anything about justices of the Supreme Court getting to decide what is and isn’t constitutional. The only reason the Supreme Court has such power is because justices of the Supreme Court said so, and they did this by reaching beyond the original text of the Constitution.
Supreme Court justices make the decisions that they want to make because they want to make them. The Constitution offers some fairly vague guidance, but that’s it. Any claim to the contrary is window dressing.
Jonathan Wolf is a civil litigator and author of Your Debt-Free JD (affiliate link). He has taught legal writing, written for a wide variety of publications, and made it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at firstname.lastname@example.org.