Corey Belobrow is an attorney in Concord and has practiced law for more than 40 years.
‘Originalism’ is a way of interpreting the Constitution and whether laws are “constitutional.” It means that the Supreme Court should interpret the Constitution based on how its words were originally intended.
So, words from the Constitution would be interpreted based on how they were meant in 1787, or the 1860s in the case of the 13th, 14th and 15th Amendments. Those using originalism interpret our Constitution by seeking the meaning supposedly intended 235 years ago.
Is it truly possible to know what those at the Constitutional Convention of 1787 were thinking? The “Federalist Papers” give us insight into the arguments of the day. Most of those arguments were made by James Madison and Alexander Hamilton. Madison was born into plantation-owning and his plantation had 100+ slaves in 1801 (Wikipedia).
Thomas Jefferson, who drafted our 1776 Declaration of Independence, fathered children with the enslaved Sally Hemings. When he wrote “Life, Liberty and the pursuit of happiness,” in the Declaration he meant only white men. Slaves, women and the Native Americans who were here first did not have any rights. White men were free to treat enslaved Black persons as mere possessions. They traded enslaved people like cows or horses.
My point here is not my criticism of the Founders. I want to place in context what originalism says we should look at. Do we interpret words from a world based on what slave owners thought and wrote more than 200 years ago? The Founding Fathers did a remarkable job launching our democratic system, the world’s envy. But they didn’t think women or people of color had any rights.
So should originalism be used at all, or only very sparingly? Today’s Supreme Court has used it as a guiding light, including in overruling Roe v. Wade. Justice Alito’s majority opinion notes that the Constitution makes no mention of abortion. Originalism should be used sparingly, at best, because the Founder’s viewpoint, assuming we can really find it, was the viewpoint of a very limited and very privileged segment of the population.
Women must have made up 50% of the white population in 1787. Enslaved people were 18% of the population (statista.com). So approximately 68% of the population had no input into the meaning of “liberty” as used in the Constitution.
Even that 68% may not have considered abortion to be part of “liberty” as used in the Constitution. But the thoughts of a few Founders, anointed from the “upper crust” should not bind us forever in what the words of the Constitution mean. Their 235-year-old thoughts on “liberty” should not control our court decisions forever.
Originalism was the excuse for the Dobbs case overruling Roe. States are now permitted to outlaw abortion, even in the case of rape, incest, or if a pregnant woman may die if forced to carry to full term. Some states will force a mother to give birth even if the fetus has no chance of survival.
The views of most people on women’s rights and “liberty” are not what they were 235 years ago. In most states then women couldn’t own property. The property had to be owned by their husband or a relative. 235 years ago almost all women of color in the U.S. were enslaved. Few Founders thought a Black woman had any rights to their own body. They could be used as sex slaves at the whims of their owners. Do we really want to use the values from 1787 as the yardstick for Constitutional rights?
Women’s liberty depends heavily on their ability to choose whether to bear a child. Some critics of this viewpoint will say that women can choose not to risk having sex if they don’t want a child. But that both places all the blame on the woman and further restricts her freedom in a manner inconsistent with life today.
Women must be able to decide whether to go through with childbirth and not be compelled to carry a fetus to term. Nothing is so intimate as carrying and giving birth to a child. Although abortions should be few, it should be a woman’s choice whether to continue with a pregnancy.
The flaws of originalism don’t end with abortion rights. Contraception and gay marriage rights also hinge on the constitutional meaning of “liberty.” We can guess that condoms were not prevalent in 1787, nor much talked about. Are you prepared to have some government tell you that you can’t use the contraception of your choice in your own bedroom?
Similarly, gay marriage was undoubtedly not a topic of discussion at the 1787 Constitutional Convention or when the 14th Amendment was passed. For originalists, that means that it cannot be part of “liberty.” I do not believe that people’s civil rights are unchangeable and tied to what Madison and Hamilton thought. The concept of “liberty” should have some ties to the present.
While the words of the Constitution must be respected, the Founders used a broad phrase. I doubt they intended the meaning of that phrase to be everlasting.
Consider interracial marriage, as well. That surely was not considered a protected right in 1787. Sixteen Southern states outlawed interracial marriage until the 1960s. But the Supreme Court found Virginia’s “Racial Integrity Act” unconstitutional under the 14th Amendment.
Even in the 1860s, those voting for the 14th Amendment likely did not think that “equal protection” included interracial marriage. Indeed, Virginia argued that the framers of the 14th Amendment did not intend to make state miscegenation laws unconstitutional. The Supreme Court rejected Virginia’s argument, thankfully.
The right to contraception, gay marriage, and interracial marriage all raise the issue of whether we are hide-bound to the thoughts of Founders who are dead 200 years or more. So, too, the right for a woman to choose whether to take a pregnancy to term.
I say that originalism is a problem and not a sound method of determining rights in the 21st century and beyond.