I was in college when Antonin Scalia joined the Supreme Court in 1986, so I was too busy partying to pay much attention as the seeds of our current doom were sown. But I do remember being repelled by his smarmy condescension during a TV interview.
As I recall it all these years later, Scalia complained that people reacted to his originalism philosophy as if he had confessed to a penchant for cannibalism. But I now know they were right to do so; Scalia may not have dined on human flesh, but he and his fellow travelers were chowing down on our rights and potential as a nation.
Dahlia Lithwick gets it — she wrote about the destructive power of the originalism scam in Slate in a piece titled “How Originalism Ate the Law.” An excerpt:
America is being led astray by a small handful of folks who are drunk-driving on originalism—and not in a funny Marx Brothers, spin-around-in-circles-and-all-fall-down sort of way. No, it’s in a children-murdered-in-their-classrooms, women-hemorrhaging-in-parking-lots, environmental-and-health-regulations-destroyed kind of way. And that’s because the whole nation is currently lashed to a small, stupid, perpetually changing theory of legal interpretation variously known as “originalism,” or “textualism,” or “original public meaning,” or “history and tradition.”…
Shackling one’s understanding of the law to the drunken methodology of “originalism” doesn’t simply ignore the technological realities of modern life, like serial numbers, and bump stocks, and the vagaries of online content moderation. It also turns every judge and lawyer into a part-time Revolutionary War reenactor and part-time recreational archivist (whose bare-bones understanding of history tends to become immediately obvious). As the Supreme Court burns down decades of doctrinal progress and a century of modern government, it leaves only skid marks in its wake…
This all happened in the course of a short very few decades. It happened because an entire Potemkin village of originalist academics, originalist law-review articles, originalist theories—chiefly funded by very contemporary oligarchs—was built up to present it as a reversion to the way things always were, as opposed to a revanchist attack on modernity itself… Originalism is a modern-day lie about history that presents itself as historical. And originalism, marketed in the 1980s and ’90s as, at bottom, a theory of judicial restraint, has now become an uncontrollable and unpredictable Tasmanian devil that has gobbled up decades of precedent, the regulatory state we had built to ensure that we have clean air and drinkable water, and the line between church and state. Perhaps most viciously, originalism has chewed up and spit out the 13th, 14th, and 15thAmendments—the very history that was committed to text in order to protect the idea of a pluralist, generous, and expansive vision of liberty as the country finally ended the atrocity that was slavery. As Justice Ketanji Brown Jackson has pointed out on more than one occasion, the use of history itself to erase history is now a central part of the originalist project.
The whole thing is worth a read, and it’s part of a larger effort by Lithwick and others to define ways to fight our way out of the originalism trap. Like all our battles to hang onto a semi-modern democracy, it will be the work of generations. (Le sigh.)
Open thread!
