Let’s say you went to a restaurant and ordered a big ol’ meat sandwich only to find nothing but straw between two pieces of bread.
“Waiter!” You say, calling over a server.
“What’s wrong, Sir?”
“There’s no meat in my sandwich.”
“Oh, Sir?” He says smiling, examining your plate. “Here at Scalia’s Bar and Grill we adhere to a strict originalist interpretation of language.”
“What does that have to do with my sandwich?”
“Well, Sir, in Old English ‘meat’ meant any solid food, anything other than drink. As in ‘A Journey to the Western Islands of Scotland’ (1775), Samuel Johnson noted, ‘Our guides told us, that the horses could not travel all day without rest or meat.’”
“But that’s not what I ordered!”
“Oh yes it is, Sir. You ordered the meat sandwich. Enjoy your fresh hay and oats.”
In everyday life, you wouldn’t put up with that kind of nonsense.
But for some reason, far right ideologues think it’s exactly the right way to interpret the U.S. Constitution.
The meanings of words change over time.
But ignoring that fact allows disingenuous crackpots to sweep over centuries of judicial precedent in favor of what they pretend to THINK the words meant at the time the law was written.
It’s not even about what the writers of the law SAID it meant. It’s about what today’s justices decide some hypothetical average Joe of the distant past would take certain words to mean.
The most obvious example, according to Pulitzer Prize winning historian Joseph Ellis, is District of Columbia v. Heller, 554 U.S. 570 (2008), which reversed 200 years of precedent on gun regulations.
Before this ruling, the Second Amendment was interpreted to be referring only to service in the militia. The Militia Act of 1792 required each able-bodied male citizen to obtain a firearm (“a good musket or firelock”) so he can participate in the “well regulated militia” the Amendment describes.
It was about the obligation to serve your country, not the right to own a gun. However, Supreme Court Justice Antonin Scalia – the most infamous proponent of judicial originalism – orchestrated the majority opinion in this case changing all that. By doing a thought experiment about what words might have meant in the 1700s, he papered over two centuries of established law. He was so proud of it that he even described it as “my masterpiece.”
THAT’S judicial originalism.
And now that Scalia fanboy and federal judge for not even three whole years, Amy Coney Barrett, is being rammed through Senate Confirmation Hearings, that preposterous ideology is about to have another proponent on the highest court in the land.
Just imagine if we interpreted everything like people living in the 18th Century!
Black people would lose any semblance of equal rights even being forced back into slavery.
Women couldn’t get checking accounts, their own healthcare, make decisions about their own bodies, even vote (least of all hold positions on the Supreme Court).
And our public schools wouldn’t even exist!
After all, there was no widespread, comprehensive system of public education in the country before John Dewey championed it in the 1930s.
Sure, Presidents Washington, Adams, Jefferson and Madison all spoke at length about the importance of education to a free and just democratic society.
But remember, originalists don’t care about the writer’s intent. They only care about what regular people would understand by the terms. And regular people wouldn’t even understand the words “public” and “school” used together as a single concept at the time.
The first school that opened in what would become the United States was The Boston Latin School in 1635.
Its mission, and that of other colonial schools, was not to teach academics like math and literacy. It taught religion, family values and community spirit kind of like many parochial schools today.
Moreover, most schools were for boys only. If they deigned to teach girls at all, they taught them how to read but not write. No reason to give people a voice who weren’t seen as worthy of being heard.
Academics didn’t become something schools were responsible for until the mid-1800s. And even then, how they went about achieving it differed greatly from region to region of the country.
In the South, education rarely had anything to do with anything we’d call a school today. Rich families paid private tutors for their children. Everyone else was expected to work as soon as they were able.
In fact, it wasn’t until the Civil War ended and the Reconstruction era began when public schooling really became a thing in the South.
And even when it did, it didn’t look much like our schools of today. These were often one-room schoolhouses where a single teacher tried to educate children of various ages, grades and abilities.
Moreover, these schools weren’t solely supported by taxes – if at all. These Common Schools were more like private or parochial schools of today. Parents paid tuition, provided housing for the teacher, or contributed other commodities in exchange for their children’s education.
Even then, the learning students received wasn’t nearly as comprehensive as our kids routinely expect in even the most under-funded urban public schools today. And special education services was non-existent. Kids with special needs were routinely left out of education altogether.
Only 31 states passed laws requiring children to go to school by 1900, and kids only went from age 8-14. It wasn’t until 1918 that every state even required elementary school.
But let’s not forget segregation.
It was the law of the land until Brown vs. Board in 1954, and even then it took until the late 1970s to become even moderately enforced.
Subsequent rulings have weakened school integration efforts to such a degree that today many districts are as segregated – if not even more – than they were in the 1950s.
Just imagine if Barrett gets together with the wingnut Republican majority on the court to reevaluate that ruling!
Imagine how many centuries of slow progress she could overturn by appealing to the common man – of 1776.
Imagine if she and the regressive right examined free speech cases! After all, many of these laws were written during the time of the Adams Administration’s Alien and Sedition Acts which radically cracked down on free expression.
We could expect a rush to return to the mire and muck that many of our enlightenment heroes were trying to escape in the first place.
But originalists like Barrett claim only they can interpret what the language in these laws originally meant. Yet their training is in law, not literacy or antiquity. They’re not linguists or historians. They don’t have some shortcut to what people used to mean by these words. They’re just playing with the language to make it mean what they want it to mean so they can rule however they so choose.
Even if they could figure out the original meaning of the words in these laws, that doesn’t guarantee it would make sense in today’s world. How, for example, do the founding fathers views on medicine have anything to do with today’s healthcare system that didn’t exist in the 1700s and that the founders couldn’t even comprehend? How do the founders views on gun rights relate to today’s firearms when they knew only of muskets and not automatic weapons?
Finally, why should we give preference to antiquated ideas over modern concepts? The laws of yesteryear may have been suited to the days in which they were written. However, if a law cannot grow to encompass the world as it exists, it has no right to continue to exist.
Judges are not supposed to overturn precedent based on lingual folderol. They’re supposed to uphold the law based on logic, reason and sound judgement.
Any judge that disagrees has no place in our courts.
It’s ironic that such degeneration would come from the Republican Party.
After all, the GOP platform is certainly different today than it was when Abraham Lincoln was sworn in as their first President.
They used to stand for abolitionism, immigrant rights and progressive values.
Now they’re the party of plutocrat neofascist Christian fundamentalism.
If anything were to revert back to its original meaning, I wish it were the Grand Old Party, which is now neither grand, barely a party and merely old.
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