Smart Bird: An Historian on “Originalism”

I would like to introduce you to Heather Cox Richardson who writes daily history takes on her substack site at Letters from an American. I receive her daily e-mails and today’s I learned a bit about our Supreme Court. Here is an excerpt from her letter today:

The originalism of scholars like Barrett is an answer to the judges who, in the years after World War Two, interpreted the law to make American democracy live up to its principles, making all Americans equal before the law. With the New Deal in the 1930s, the Democrats under Franklin Delano Roosevelt had set out to level the economic playing field between the wealthy and ordinary Americans. They regulated business, provided a basic social safety net, and promoted infrastructure.

After the war, under Chief Justice Earl Warren, a Republican appointed by President Dwight Eisenhower, the Supreme Court tried to level the social playing field between Americans through the justices’ interpretation of the law. They tried to end segregation through decisions like the 1954 Brown v. Board of Education of Topeka, Kansas, which prohibited racial segregation in public schools. They protected the rights of accused prisoners to legal counsel, and the right of married couples to use contraception in 1965 (it had previously been illegal). They legalized interracial marriage in 1967. In 1973, they tried to give women control over their own reproduction by legalizing abortion with the Roe v. Wade decision.

The focus of the Supreme Court in these years was not simply on equality before the law. The justices also set out to make the government more responsible to its citizens. It required that electoral districts be roughly equal in population, so that a state could not have one district of a few hundred people with another with a hundred thousand, thus establishing the principle of “one man, one vote.”

These were not partisan decisions, or to the degree they were, they were endorsed primarily by Republicans. The Chief Justices of the Court during these years were Republicans Earl Warren and Warren Burger.

Today’s “originalists” are trying to erase this whole era of legislation and legal decisions. They argue that justices who expanded civil rights and democratic principles were engaging in “judicial activism,” taking away from voters the right to make their own decisions about how society should work. They say that justices in this era, and those like them in the present—people like Ruth Bader Ginsburg, who protected women’s equality before the law– were “legislating from the bench.” They hold tight to the argument that the Constitution is limited by the views of the Founders, and that the government can do nothing that is not explicitly written in that 1787 document.

That last statement is amazing if true.

“They hold tight to the argument that the Constitution is limited by the views of the Founders, and that the government can do nothing that is not explicitly written in that 1787 document.”

I still have questions, such as which Founders since they all disagreed on so many issues. And who is included in this club of Founders.

And let’s not forget the “views of many of the Founders” included: Only land owning white men could vote, so I guess we have to take away women and non-white voting rights. I guess slavery is constitutionally okay. And we can only own a flint-lock since that is all they had then and that would have been their view on the right to bear arms.

I’ve spent the last years learning about the concentration of wealth in America and how this has come about from an economic perspective. I seem to be stumbling into the other side of the coin… how the concentration of power is being designed into our system. I’m not liking it. Dangerous times.

Heather Cox Richardson’s Letters from an American [Historian}

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Categories: Perspectives