I almost admire the conservative ability to wardrobe utter bullcrap as serious legal argument — and get away with it. “Originalism” is one hundred percent pure, unadulterated bullcrap. The tell? It holds this truth to be “self evident” — that “all men are created equal”. Except the white, Christian, land-owning men who wrote and stood by those words didn’t mean them literally. Yes, they meant only men. But, by “men”, they only meant white, Christian, land-owning humans possessing a Y chromosome (a thing they didn’t know existed). While some of America’s founders truly took their inspiration from the French Enlightenment, too many took their inspiration from the Bible — where slavery (and bigamy and child rape and all kinds of awfulness) was accepted. The Bible was used to justify slavery (and miscegeny and genocide). To this day, some of our most fervent Christians (by their description) are also our most fervent racists, misogynists, bigots and fans of genocide. Orginalism sees itself reflected in slavery and it likes what it sees.
Originalism is all about justification — justifying why modern people, despite being modern, are obligated to follow how things were done in the past simply because that’s how they were done in the past! That’s it. That’s conservatism’s entire rationale — what’s wrong with ‘how we did it’ even if ‘how we did it’ excluded, punished, disenfranchised or disadvantaged an increasing percentage of the rapidly diversifying population?
The term was coined in the early 1980’s by then Stanford Law School dean Paul Brest (who was actually critiquing originalism as a way of thinking). Legal minds and scholars were trying to wrestle to the ground “the founders’ original intent” as a “final arbiter” for how to interpret them. Now, let’s be clear up front — the founders did some serious heavy lifting. They articulated something that hadn’t ever been articulated before: what Lincoln would later call “a government of the people, by the people and for the people”. But, being fallible humans (being men even more fallible therefore!) America’s founders didn’t get it entirely right. For starters? They screwed the pooch on “All men are created equal”! We The People need to start there. Most people who aren’t white already do.
Originalism appealed to smart guys like Antonin Scalia because they saw in it a way to disguise their own racism. They want us to believe it’s not relevant that the founders lived in a hierarchical world of their own creation. That slavery existed then means, really, that slavery should still exist now. Republicans really and truly do believe that. It’s why they hate the whole idea of a “minimum wage”. A minimum wage means you can’t coerce someone to work for you for free. That is what slavery is after all — stolen labor. A slave owner steals the work product of his slaves (after deducting the costs of housing, clothing and feeding the slave). It must have been profitable because slavery persisted in America for as long as it did.
It took a whole Civil War to actually stop it. Though, looking back, clearly, we only stopped slavery as practiced out in the open. Slavery has endured to this day. It’s what killed Reconstruction dead before it could level the playing field. It’s what motivated every Jim Crow law (now and then). It’s what motivated poll taxes and voting restrictions. It’s what motivates white supremacy and pretty much the entire Republican “agenda” (such as it is). Originalism, don’t forget, made its peace with slavery: it accepted it outright.
And every originalist still does — still accepts, if not slavery itself (so messy!) then slavery’s cousins, nieces, nephews and entire extended family. Anything that forces America to be exactly how it was, or to think how it thought, wears its white supremacist purpose right there on its Klan robe. How much would you like to bet that more than a few conservatives — if given a way — would gladly bring back slavery?
Fortunately for America, some of its founders actually got what America was actually doing — saw its genius and framed that genius correctly: “E Pluribus Unum”. Out of many, one has always been the source of America’s genuine exceptionalism. Diversity. Ironically, diversity is originalism’s nemesis.
What more do you need to know about originalism? It excuses white people from ever having to work too hard, from having to compete, or from ever having to take responsibility for their actions. Imagine the chaos that corruption would cause if it slipped on a judicial robe and then legitimized itself. Hey — no need to tax your imagination. Show me an originalist, I’ll show you a racist — even if they present as a perfectly nice lady like Amy Coney Barrett. Institutional racism like theirs never has to sully itself with honesty. The racism embedded in the culture does all their heavy lifting.
Ditto the misogyny.
The RW money — seeing demographic extinction in its future — got proactive. The Mercers, the Kochs et al, put their money on (and into) the Mitch McConnell project to deny President Obama very possible lifetime federal bench seat while cramming through as many of Trump’s lifetime appointments as possible (including Amy Coney Barrett’s shotgun nomination and confirmation in the waning days of Traitor-In-Chief Donald Trump). The RW money represented the very same interests as white supremacy — but with a used car salesman’s disingenuous smile and a proctologist’s cold, fishy handshake. Democracy poses too many problems. It’s too, too unpredictable. That’s why it was always the RW money’s goal to do everything possible to undermine American democracy — it’s the shortest distance between where they are now and permanent minority rule.
If America’s founders had been all or mostly Black, do ya really suppose “originalism” would be a “thing” among white guys today? Of course it wouldn’t! And if Black guys spit back “originalism” every time a white guy demanded to know why he had no rights? This is one more conversation we would not be having.