The real goal of originalism is to increase the political power of reactionaries.
The recent Supreme Court mandate brought major victories to the reactionaries in favor of forced births.
The Dobbs v. Jackson was justified by originalism, a theory of jurisprudence that advocates interpreting the constitution as a perfect final document.
That said, when you stop and think for a second, it becomes clear that originalism is not actually credible case law, but rather a right-wing political movement on a mission to reverse the past 70 years of progress.
This reversal of progress is exemplified by the Dobbs decision as it allowed the state of Mississippi to implement an abortion ban 15 weeks after gestation and explicitly stated that the right to abortion is not protected by the constitution.
This reversed the precedent set by Roe v. Wade and Planned Parenthood v. Casey, the cases that protected the right to abortion under the 14th Amendment confidentiality clause.
The sentimentality of originalist thinking can be summed up by the majority opinion of Justice Alito in Dobbs v. Jackson.
The decision was justified by Alito in that the majority was of the view that for a contingent right to be constitutionally protected, that right must be “deeply rooted in the nation’s history”.
Essentially, Alito’s argument boils down to the idea that if the Founding Fathers believed the right to abortion should be protected, they would have enshrined it in the constitution. To simplify, since the word abortion is not mentioned in the constitution, the constitution does not grant the right to an abortion.
The logic of Alito’s originalism fails on two fronts. First, the nature of how societies interpret rights changes over time. In 1789, when the constitution was drafted, it protected the so-called slavery right through the implementation of the fugitive slave and three-fifths clauses.
So if we follow the logic of originalism, since the right to enslave others is deeply rooted in the founding of our nation and a right our framers championed, the 13th and 14th Amendments violate the spirit of the constitution. and should be cancelled.
Of course, when you take originalism to its natural conclusion, you understand how foolish it is to base legal decisions on the interpretations of people who lived three centuries ago. Just to rub the knife in the wound, the drafters themselves agreed with the idea that the constitution was not a document set in stone.
As Thomas Jefferson and James Madison believed, the constitution was to be interpreted as a living document that served as a guiding principle for future generations. Not a document to be taken literally.
In fact, Jefferson himself took this point to the extreme and argued that every two decades or so the constitution should be rewritten to better suit the times and the issues affecting the regime.
Based on the perspective of the fathers and the superficiality of originalism as jurisprudence, it seems that the originalist jurists are misguided.
However, the internal logic and historical context of originalism makes it clear that these jurists are charlatans disguised as senior jurists. This is because the goal of originalism is to transform the United States into a draconian society.
When one peeks behind the mask of jurisprudence, it becomes clear that originalism is the culmination of a right-wing political movement determined to dismantle the gains of the American experience. Achievements that have dramatically improved the quality of life for millions of Americans.
Originalism is not meant to persevere and help achieve a more perfect union, rather it is a reactionary ideology intended to preserve the power of white Christian conservatives.
The columns reflect the opinions of the authors and are not necessarily those of the editorial board, The Daily Iowan, or other organizations with which the author may be involved.