With the appearance of the 6-3 archconservative majority on the United States Supreme Court we are witnessing the “originalist” view of the United States Constitution being played out on the national stage. As this column is being written history and the system of laws in this country are being miscast and misconstrued in order to provide constitutional cover for the efforts at imposing minority rule on a nation that is resistant to such rule.
Consider that the literal definition of this “originalist” theory is that the framers of the Constitution were clear and intentional about every aspect of that document and that all concepts contained therein are to be interpreted literally. Another facet of the “originalist” theory can be summarized as saying that – if the right, mandate or concept is not literally written into the Constitution, then that right, mandate or concept cannot be constitutional.
Trying to understand this concept would test the logic and patience of a saint, but here goes. If this originalist theory were to be applied literally, we must begin by identifying some of the thousands of events and concepts that have changed America (and the world) since 1787 in no particular order:
- The Louisiana Purchase
- Equal Rights for White Women
- Equal Rights for Black Women and Black Men
- Climate Change
- Nuclear Energy
- Transgender Rights
- Same Sex Marriage
- Abortion Rights
- Rights of the Differently Abled
Following this “originalist” approach to the Constitution to its (il)logical conclusions here are a few ways in which life would have been (and will be) different if this application of the Constitution prevails:
- Since railroads did not exist in 1787 and federal funds were used to help finance the Transcontinental Railroad and many other rail lines – which fundamentally changed this nation – the use of the funds should have been ruled as unconstitutional and the growth of America as we know it would have been stunted for generations.
- Since the application of electricity for commercial/industrial purposes was unknown in 1787 (with a nod to signee Benjamin Franklin) public utilities that provided the platforms for the electrification of America should have been ruled unconstitutional once again stunting the industrial and commercial growth of this nation.
- In 1803, then President Thomas Jefferson had no constitutionally sanctioned right or explicit power to negotiate the purchase of North American land to which France had a spurious claim at best. If Jefferson adhered to the rigid interpretation of today’s Supreme Court (remember that Jefferson was one of the architects of the Constitution that is so revered by today’s Court) then there would be no constitutional basis for the Louisiana Purchase and therefore the states of Arkansas, Missouri and thirteen others would never have existed.
- Since there was no mention of equal rights for white women, Black women or Black men in the Constitution, those rights do not have any constitutional basis in the present and relevant laws, rules and regulations should be repealed.
- In 1787 there was no such thing as climate change. However, even though climate change is an undisputed scientific fact, the originalist approach would prevent any federal, state or local initiatives to curb climate change from being deemed to be constitutionally permissible.
- Since the internet was not even almost a concept in 1787, government support and regulation of the internet should be deemed unconstitutional according to the originalist view and should cease immediately.
- Certainly in 1787 there was not even a glimmer of a hint of a thought regarding transgender rights, same sex marriage or rights of the differently abled and therefore, so the originalist thinking goes, any support for the articulation or implementation of these rights is unconstitutional on its face.
- Today’s Supreme Court has already ruled that since abortion rights were not specifically written into the Constitution, abortion rights are not constitutional. And we see how that is working out in real time.
The Constitution was ratified in 1788 and in 1791 there were ten amendments (the Bill of Rights) to codify rights that were part of the basic motivation for the revolution against Great Britain. Since then there have been only 17 amendments, some of them procedural (presidential term limits, protocols in the event of presidential incapacity, senators elected by popular vote), some of them farcical (Prohibition and the repeal of Prohibition) and three have had historical and institutional impact (13th, 14th and 15th amendments).
In other words, in 232 years there have not been many consequential amendments to the Constitution. It has endured as the basic governance document of this nation through interpretation and adaptation by Congress, presidents and Supreme Court justices. There is no mention of civil rights or Social Security or the United Nations in the Constitution, but the document has endured due to rational application of the document to the times.
The current Supreme Court majority sees the Constitution as some kind of H.G. Wells Time Machine to take this nation back to the 18th century. It is fool’s errand to be sure, but the totally unnecessary and uncalled for controversy and chaos occasioned by this misguided view of the Constitution and its history will be paid for many times over by every American woman, many and child.
A sad state of affairs that was never envisioned in 1787.