“I am certainly not an advocate for frequent and untried changes in laws and constitutions, but … laws and institutions must go hand in hand with the progress of the human mind.
“As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.
“We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.”
Thomas Jefferson wrote those words in 1816 when he was asked about weaknesses in the relatively new government, and if you read them carefully, you’ll see maybe the best argument ever against the judicial doctrine known as originalism.
To those who believe originalism such a wonderful thing, we need to remember that many of our Founding Fathers were out-and-out racists. If they didn’t believe in slavery, most of them certainly believed in the supremacy of the white race.
They certainly didn’t see women as equal to men in the face of the law, and we haven’t even mentioned the genocide of Native Americans.
Most of the Founders were serious elitists when it came to who should be running things, and laws were very much tilted toward those who already had wealth.
They lived in a country that wasn’t much more than a coastline, one in which 12 of the 13 original states bordered on the Atlantic Ocean, and the one that didn’t borders on a river that flows to the ocean.
“Alex, what is Pennsylvania?”
Originalism turns out to be pick and choose with many of those who profess it anyway. Judge Amy Coney Barrett said two of the landmark racial cases in the middle of the last century were correctly decided. Brown v Board of Education desegregated the schools and Loving v Virginia legalized interracial marriage, and Barrett even called them “superprecedents,” apparently saying they shouldn’t even be contested.
She probably doesn’t feel the same about Roe v Wade legalizing abortion or Obergfell v Hodges making same-sex marriage legal, although in both cases, overturning them would only take decisions on abortion and same-sex marriage back to individual states.
Actually, it’s kind of silly that we even have states anymore. The original reason for things like two senators per state and the whole idea of the Electoral College was never to protect small states from large ones. It was always about protecting slave states from abolitionists.
If we really did have states’ rights, you might find yourself on I-10 heading east out of Texas and all of a sudden it becomes a dirt road in Louisiana. If that sounds like an exaggeration, well, there are certainly plenty of states who would just as soon not spend the money to live up to national standards.
Plenty of people say originalism is meaningless because the Founders never imagined air travel, penicillin, computers or a myriad of other things. That may be true, but I think what’s far more on an indictment is that even the Founders never thought they were bringing down the commandments from Mount Sinai.
When James Madison was asked how long he thought the Constitution would last, he said he thought a generation or two would be accurate.
Then of course Jefferson, who for all his flaws was almost certainly the greatest mind of the 18th century.
“We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.”
What? You say it’s unfair to call them barbarous?
Ask black people.
Ask women.
Ask American Indians.
Enough said.