The recent overturning of Roe v. Wade and Casey v. Planned Parenthood by the Supreme Court has shattered traditional notions of the highest court in the land. SCOTUS was previously viewed by scholars and the public as the less political branch due to its judicial independence and trends toward consensus but has now become another victim of increasing polarization striking political elites. Even more prescient in my mind, as well as my fellow writers, however, is the self-proclaimed “originalism” of a collection of the justices.
Originalism is a judicial philosophy formed by Justice Scalia in response to the perceived judicial activism of SCOTUS. This philosophy purports that, when facing a constitutional question, one must refer to the law using its original intent. Consequently, justices rely heavily on the history and legal debate surrounding the law at the time it was written. Of the nine court members, Justices Thomas, Gorsuch, Kavanaugh, Alito and Barrett have all stated they are originalists and their voting records seem to back those claims up.
At first glance, a philosophy stating we should simply follow the text of the Constitution as intended isn’t so unreasonable. But upon further examination, the cracks in the theory reveal themselves.
Two recent decisions made have exemplified these cracks. The first, Dobbs v. Jackson Women’s Health Organization, displays a shocking lack of awareness of the legal history of women despite its effects being felt the most by women. The second, New York State Rifle Association Inc. v. Bruen, completely ignores the scholarly debate surrounding the second amendment and attempts to politicize history.
In Dobbs, Justice Alito stated, “the right to abortion is not deeply rooted in the Nation’s history and tradition.” Justice Thomas said something quite similar in New York Rifle about the individual’s right to own and carry a gun saying, “the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearm regulation.”
Alito claimed “three-quarters of the states made abortion a crime at all stages of pregnancy” and “until the latter part of the 20th century, such a right [to abortion] was entirely unknown in American law” in Dobbs. The problem with this assertion is until the mid-20th century, the idea of women as equal citizens was unknown in American law and society.
Property rights for single women did not arrive until the early 19th century in some states. Married women could not control their personal finances in many states until the late 19th century. Women did not retain the right to vote until 1920. For poor, uneducated and/or non-white women, this right is still being challenged to this day. Of the many laws suppressing women’s rights to bodily autonomy was the infamous Comstock Laws of 1873, which banned any “obscene” material. This massively reduced accessibility to things as small as romance novels to as vital as contraception.
How can Alito claim to have history on his side when the laws he mentions never had the consent of women? The laws he references were written to actively suppress female political influence to near-negligible levels. They have no basis in modern science and actively go against the XIV Amendment’s equal protection clause — they shouldn’t be used to ascertain the constitutionality of abortion.
In the case of New York Rifle v. Bruen, the court found historical evidence of an individual right to gun ownership and no history of regulation based on exemplifying a need for one. However, when looking at the Second Amendment, the text does not show a right to self-defense or to individually own guns. In fact, Sir William Blackstone, a leading thinker in common law, insisted rights are “two-sided,” that guns inherently come with the obligation to properly use and possess them.
Therefore, the existence of a right doesn’t bar regulations intended to protect the public. For some scholars, that means ownership is only within the confines of a trained militia. Upon examining the legal history of the United States, there are plenty of places to look for tight restrictions throughout the country on firearm ownership.
Justice Thomas uses his originalism as an excuse to automatically bar New York from enacting their gun law partly because he believed there was no history supporting such a law. Thomas was correct in stating the law was egregiously unambiguous in its application, but his claim to have history on his side is deceptive and false. History doesn’t take sides, it simply states what happened.
These Justices are not “originalists,” they are would-be autocrats. Their form of originalism places an undue burden on history without regard for public opinion, modern science, legal and political philosophy. It fervently strives to collectively hold our nation back.
While the original purpose of the Constitution is important to look at for the baseline of the decision, it is absurd to look at our history for answers. Our history is muddy, covered in dark times as well as unequivocally bright ones. We have a history of subjugation, discrimination and bigotry. But we also have a history of resilience, courage and progress. SCOTUS’ decisions should never be based on American history alone, as that simply allows the Court to cherry-pick history to fit their agenda.
