"A Republic If You Can Keep It": A Review of the Roberts Court and The Originalism Trap
This was meant to be a book review of the excellent if infuriating The Originalism Trap by Madiba Dennie. However, the Trump Immunity ruling, among others, have pretty much made her argument irrefutable. There is no way to argue that Originalism is the single most outcome driven method of Constitutional interpretation. Anyone advocating it is acting on bad faith or trying to impress Conservative justices who control the courts.
The book does an excellent job of laying out the case against originalism. The use of history by non-historians is suspect at best. Judges can and do emphasis different parts of the same history in order to get the results they favor. The Supreme Court has treated history differently depending on the case. In Dobbs, the supposed lack of historical support for abortion means there can be no abortion right, but it Bruen the supposed lack of regulation of guns means that no such regulation can exist. And, of course, in both cases they cherry picked history to arrive at the conclusion they wanted.
Nor do originalists use originalism when it does not suit their purposes. The 15th Amendment very clear states that the right to vote cannot be “denied or abridged … by any State on account of race, color, …” and that “The Congress shall have power to enforce this article by appropriate legislation.”. And yet Roberts destroyed the Voting Rights Act — legislation enacted by Congress to further the aims of the 15th Amendment — because he felt that it was unfair to Southern states. There is no history to even begin to support the idea that the Congress that won the Civil War as concerned about fairness to Southern states. So Roberts ignored history and tradition and made up the law he wanted.
They have done the same with the case putting the president above the law. In the words of Justice Sotomayor “It seems history matters to this Court only when it is convenient.” Perhaps the only clear thing about the Founders was their disdain for the idea that a person was above the law. But, of course, that is the point of originalism. It does not constrain the justices using it in any meaningful way. Most history can be made to say almost anything, and when history fails to produce the results you want, you abandon it for the arguments that will. Originalism is nothing more than cheap window dressing on the desire for justices to legislate from the bench. It has never been anything more.
So what is the alternative? First, buy and read the book. It is an excellent primer on the damage this activist interpretative methodology has done. For the immediate future, the Court must be reformed. You cannot allow originalist justices to destroy the Constitution with their historical treasure hunts. What to replace it with? Inclusive Constitutionalism, Dennie’s suggestion, would be a good start — a Constitutional order the recognizes that the Reconstruction Amendments ensured that everyone was a part of the democratic experiment, and to weight Constitutional questions on that basis. It is certainly more constrained and humbler than originalism, and more honest as well.
The Roberts Court has, through its destruction of the Voting Rights Act, it’s almost complete destruction of bribery laws, its destruction of campaign finance restrictions, and now its elevation of the President to the role of King when acting officially, has done its level best to destroy the foundations of the Republic. At every step, they have been aided by originalism or by the failure of originalism to actually constrain their personal policy preferences. If we intend to keep our republic, originalism must be consigned to the history from which it claims to have arisen.