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Kentaji Brown Jackson & the Lie of "Originalism"
Nice judicial philosophy you got there. Be a real shame if someone pointed out its inherent contradiction.
With the inevitable confirmation of Kentaji Brown Jackson to the Supreme Court underway, the issue of judicial philosophy and the role of the Court has yet again resurfaced. Specifically, there’s been an interesting focus on KBJ’s relationship to “Originalism.”
I don’t think Judge Jackson is an originalist, for the simple reason I don’t think anyone is an originalist. Allow me to explain.
The Originalism Origin
Originalism is the judicial backbone of Conservatism. Republicans both in and out of government (i.e. The Federalist Society) have embarked upon a half-century-long campaign to get as many “originalist” judges onto U.S. courts with the explicit goal of enacting this judicial philosophy.
To put it simply, originalists (claim to) believe judges should interpret the Constitution exactly as it was written, without the influence of societal progress or public sentiment. Here’s conservative writer Charles C. W. Cooke writing in National Review:
“The originalist argument is that the Supreme Court should not act as a council of revision that takes it upon itself to amend the Constitution according to its preferences, but, rather, that it should wait for the people to make changes to the text using the amendment process that is laid out in Article V.”
To look at a historical example, originalists contest Roe v. Wade (which enshrines the Constitutional right to abortion) on the grounds the Supreme Court “interpreted” the Constitution to mean something other than the literal words composing its clauses and amendments. Roe was decided on an implicit “right to privacy” in the Constitution, which led to the ruling that the government shouldn’t interfere in private medical procedures. Originalists argue the Constitution neither mentions “privacy” nor “abortion,” so the questions of abortions should be left to the states as decreed by the 10th Amendment.
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This contrasts with the ideology of more liberal, Democrat-aligned justices, who view the Constitution as “a living, breathing document” which must be contextualized with our modern society. The question of where KBJ’s lies on the originalism-to-liberal interpretation scale has been put forth predominantly by conservative media, freeing up Republican Senators to ask the more pressing questions, such as “are babies racist?”
There Conservatives Go, Just Making Shit Up Again
While the notion of “ruling based exactly on what the Constitution says,” sounds convincing, delving deeper shows this philosophy is built upon a lie. Judicial review — the process by which the Supreme Court rules on whether or not a law is “Constitutional” — is not in the Constitution. Nowhere does Article III, which stipulates the Judicial branch, say the Supreme Court gets to decide whether or not laws passed by Congress and signed by the President are “Constitutional.” Rather, the Supreme Court gave itself this power in the 1803 case of Marbury v. Madison.
Ever since this decision, the 6, or 8, or 9, unelected Ivy Leaguers who comprise the Court have self-affirmed their final say over legislation passed by our already barely-democratic system.
Here we see the contradiction of originalism: Conservatives insist the Supreme Court must rule over laws in exact accordance with the Constitution, despite the fact the Constitution doesn’t give the Supreme Court the right to rule over laws.
But if this philosophy is so evidently flawed, then why does the Right champion it? Because it gives them minority rule.
Ever since the latter half of the 20th century, the American Right has seen the writing on the wall. With the country becoming more diverse, more accepting of non-traditional lifestyles, and increasingly skeptical of lassiez-fair capitalism, right-wingers have known their “free enterprise & law-and-order” ideology is destined for the dustbin of history. So, they did what every majority fearful of becoming the minority has done: They configured an un-democratic method of governance, which would far outlast their political popularity, to retard, if not halt, the policies they despise. This has taken many forms, from gerrymandering, to voter suppression, to literal coups, but the most successful initiative has been through the institutionalized veto power of the Supreme Court.
Whether it’s gutting the EPA, striking down union protections, or blocking the most meger of firearm regulations, the Supreme Court is the Right’s preferred bulwark against the democratically-determined progress the country seeks. “Originalism” is just the pseudo-intellectual defense they use to justify the Court’s undemocratic nature.
We’d all be well served to remember “originalism” is horseshit, through and through. Only when Americans realize this will we see sentiment to abolish the Supreme Court and institute a true democracy, by the people for the people.
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