Originalist B.S.

By GENE NICHOL

The Republican majority of the US Supreme Court tells us they are “originalists” – interpreting the constitution based on what it meant as originally written. Justice Clarence Thomas’ new, dramatically expansive gun rights opinion, he explains, is “rooted in the text of the constitution, as informed by history.” It allows regulation only “when justified by our historical traditions.” Justice Sam Alito’s dystopian abortion ruling – seeking to force the nation’s return to the 1950s – limits constitutional “liberty” through “historical inquiries” into our “deeply rooted traditions.” He would thus protect guns but not women’s reproductive rights, as if we were a barbarous people. But, it’s important to note, originalism constrains Republican justices, except when it doesn’t.

Take some Scalia-Thomas greatest hits. No originalist could conceivably defend the Citizens United case – providing aggressive First Amendment protection for endless corporate spending in elections. The framers didn’t think of money as speech or corporations as people. Thomas Jefferson notably declared:

“I hope we shall crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength and bid defiance to our laws.”

But today’s Republican justices are committed to cash register politics because it’s in the interest of rich people. That’s all that mattered in Citizens United. Never mind “original meaning.” It was the theology, not the history. The decision was reaffirmed last month.

The same can be said of Antonin Scalia’s famous opinion in Printz v. US, invalidating an essential component of the Brady Handgun Act. There, Scalia couldn’t find a shred of either constitutional text or historical practice to throw out the gun control measure. No worries. His politics were aroused. So were those of his “originalist” colleagues. A little flexibility was called for, and Scalia was nothing if not flexible, and partisan, and activist.

Scalia, Thomas and their buddies also ruled racial affirmative action by the federal government is unconstitutional. I understand there are a lot of reasons various folks oppose affirmative action. What I don’t see is how an originalist can come to that conclusion.

First, there’s no text to hang one’s hat on. The 14th amendment’s equal protection clause applies only to states, not the federal government. And if we’re to venture beyond text, what tradition of equality, pervasive in 1791, could be identified, and now enforced, against the federal government? We embraced, at the founding, slavery, 3/5’s humanity status, the legal disenfranchisement and denied personhood of women and more. So what 18th century tradition invalidates discrimination by the federal government against white folks now? No answer came from Scalia and Thomas. They just said they didn’t like it – refusing to let their theory get in the way of their politics. But a rule isn’t a rule if you get to decide, without explanation, when you apply it and when you don’t.

More originalist-discarding Republican work could be highlighted. The odd, usurping, trashing of the Voting Rights Act; the invalidation of key parts of the Affordable Care Act, creation of a slew of state’s rights doctrines to restrict congressional power; expansive regulatory takings claims, freshly minted limits on the commerce clause, the invalidation of civil rights statutes under section five of the 14th amendment. These measures were ruled unconstitutional because Republicans don’t like them. And only because Republicans don’t like them.

There are a lot of problems with originalism. The biggest one, though, is we don’t actually have any originalists. Not Thomas, not Alito, not John Roberts, not the new Trump folks. Just judges trying to enforce their preferences on everyone else; who then dress up their opinions with transparent theoretical lies.

Gene Nichol is Boyd Tinsley Distinguished Professor of Law at the University of North Carolina School of Law and in 2015 started the North Carolina Poverty Research Fund after the UNC Board of Governors closed the state-funded Poverty Center for publishing articles critical of the governor and General Assembly.

From The Progressive Populist, August 1, 2022

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