Doc Hoff’s BlogBlog Project
By: Lindsay H. Hoffman
Tags: Thomas Jefferson, Supreme Court, Religion, Originalism, Constitution

The Pervasive Problem of Originalist Construction

by University of Delaware student, Spencer Babcock

I’ve been sharing blogs written by my University of Delaware students since 2013. This blog, by Spencer Babcock, was written for my National Agenda class and outlines originalism in the justice system. It was voted as one of the best by her peers in the class.

On September 6, 1789, Thomas Jefferson penned a letter to Madison that should have ended the debate of constitutional interpretation before it began. Jefferson wrote, “No society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please, during their usufruct. They are masters too of their own persons, and consequently may govern them as they please.” Instead, this quote is often relegated to the introductory chapters of constitutional law textbooks, ignoring this protestation of adaptive governance from the very author of our independence.

Since the 1980s, the idea of originalism has gained traction among conservative justices, and this term has found itself plastered across numerous headlines lately. As Justice Coney Barrett wrote, “Originalism maintains both that constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative.” There is no contextualization of changing social standards, no injection of policy by those on the bench.

With the opportunity for a conservative-leaning majority to take hold of the court for decades to come, I found myself growing annoyed with all the talk of originalism as a rejection of judicial activism. Everything a judge does is inherently tied to rule making: who wins can alter the lives of one person or tens of millions, like Brown and Obergefell have done. There is no “anti-activist” position to be filled on the bench. Justice Scalia wrote some of the most vibrant, impassioned, and intelligent dissents and opinions the bench had ever seen — and they all advocated a position. Originalism is not seeing the Constitution as it is, it’s seeing the Constitution in conflict with the way the world is today.

Further, some argue that originalism fails to acknowledge half of our constitution; of the whole document, only the articles and the Bill of Rights are given the time of day by strict constructionists. The Reconstruction-era 13th, 14th, and 15th amendments fundamentally altered the rights citizens are entitled to — expanding freedom and correcting the moral ill wills of the founding fathers written into the document itself, such as the glaring 3/5th compromise, or the lack of explicit applicability of rights to all citizens. In regard to Justice Coney Barrett, this particular dismissal of rights and refusal to ruminate on hypotheticals could mean disaster for members of low-income communities damaged by pollution, native populations, and those who identify as LGBTQ+.

If it hasn’t already been made obvious, I am a strong advocate of the living Constitution lens, and after reading Jonathan Haid’s The Righteous Mind, I attribute this to a single clause in the Constitution and three tenants of my moral foundations. (If you watched Schoolhouse rocks, I apologize if you are stuck singing the song for the rest of the day) One of the jobs of the government of the United States is to promote the general welfare. This single line, in my analysis, dictates that care must be taken to work toward the protection of liberty and equality. The concepts of liberty and equality have fundamentally transformed since 1787, and to stick to an originalist interpretation is to harm the welfare of many constituencies in the country.

So why do originalist believe what they do? One of the easiest tenants to point to is the sanctity with which a judge may view the constitution and its authors. This year, we as a nation faced a reckoning with our past, people called for the removal of monuments to not only confederate soldiers, but also of founding fathers, who owned slaves, denied the equality of women and people of color, and were, at the end of the day, flawed individuals embarking on a social experiment no one thought would succeed. Yet originalists read the Constitution as if it were the Bible, clinging to a sacredness and need for respecting tradition that wasn’t ever meant to exist. In Chapter 11 of Haidt’s book, he calls religion a team sport, and it’s easy to extend this analogy to “‘”Team Originalists;” men and women continue to unite over the belief that the Constitution is dead, that there is not evolution of understanding, and that anything more is unlawfully legislating, most times to advance a liberal agenda.

Haidt also wrote, “Once any person, book, or principle is declared sacred, then devotees can no longer question it or think clearly about it.”Originalists indeed are failing to question the nature of the Constitution in an age the founding fathers couldn’t have imagined the country being in. With the nomination of Amy Coney Barrett, one shouldn’t hold their breath for the Court to come along for ride in this progressive time of change in which we are currently living.

This blog was written by University of Delaware student Spencer Babcock, a Public Policy major with minors in Political Communication and Legal Studies.