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There are two radically different philosophies for rendering Supreme Court decisions. One is Originalism; the other sees The Constitution as A Living Document. In deciding whether a right merits protection, Originalism attaches great importance not only to whether that right is explicitly mentioned in the constitution, but also to trying to stay true to the Framers’ intent. The Living Document approach views the Constitution as more flexible in the need to adapt to changing conditions, including issues not anticipated at the time the Constitution was written. Since our current Supreme Court is dominated by Originalist ideology, let’s take a closer look at whether Originalism is being applied consistently and provides a sound basis for deciding cases..

First, there is the near total reverence that Originalists have for the Constitution and the time when it was written. They tend to view the Constitution as written in stone, perhaps even divinely inspired. Although our Constitution was an impressive achievement for its time, it was by no means perfect. A first glaring flaw was the appalling three-fifths clause in which African Americans couldn’t vote, but were counted as three fifths of a person for the purpose of apportioning Congressional representatives. This clause certainly was not divinely inspired. Another major flaw is our election system. For example, we are saddled with the archaic Electoral College, under which, twice in recent years the loser in a presidential election got millions more votes than the winner; in fact, with the Electoral College system, it is quite possible (this is left as an exercise for the reader) for the loser to get over 60% of the popular vote and the winner under 40%. Regarding the reverence for the time when the Constitution was crafted, consider the role that women had in the social order back then. They were considered vastly inferior to men, not part of the body politic, and certainly not entitled to vote.

So keeping in mind that the Constitution was by no means perfect, let’s look at how the Originalist Court nevertheless relied on (or chose not to) the exact wording in the Constitution in deciding two recent cases. Specifically, let’s compare how differently the Court handled the right to an abortion versus the rights of a corporation. In his Roe v Wade decision, Justice Alito decided that Roe v Wade must be overturned for the simple reason that there was no explicit mention of the right to an abortion in the Constitution. But is that a reasonable standard for adjudicating rights of women today? Not only were no women delegates attending the Constitutional Convention, but the male Framers had important things to accomplish, and possible rights of women were the furthest things from their minds. 

By contrast, consider the Court’s illogical precedent that a corporation is actually a person. The Constitution makes no mention of corporations whatsoever, much less that a corporation is a person. So, the Court could have overturned this precedent as they would do with Roe v Wade. But instead, in 2010 with Citizens United, the Court went in the opposite direction and expanded the personhood rights of corporations, arguing that limiting political spending by corporations (and other interest groups) violated a person’s First Amendments right of free speech. The justices who voted with the majority (perhaps, in an attempt to show that they weren’t always indifferent to the impact of their decisions) claimed that this spending would be transparent and therefore wouldn’t be corrupt. Unfortunately, the hoped-for transparency has not occurred and the result has been dark money’s corrupting influence on our elections.

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Another shortcoming of Originalism is the inadequacy of its overreliance on the original Constitution for dealing with current issues and crises. For example, there was the recent decision handcuffing the EPA. The scientific evidence that global warming is a looming existential catastrophe is overwhelming. In fact, the current unprecedented high temperatures seem to indicate it is occurring much faster than previously thought. But the Court couldn’t find anything in the Constitution to justify giving the EPA the power to deal with this crisis, because they thought that EPA regulations were too transformative and therefore would need explicit Congressional authorization. In effect, the 6-3 majority is claiming overreach by the EPA. But by rejecting the EPA’s scientific expertise, and substituting their own ideological bias to protect a very special class of Americans, namely Corporation-Americans, it’s the Originalist majority that is guilty of overreach.

Another area of biased overreliance on the Constitution is the sanctity of the Second Amendment as a buffer against common sense gun laws. Although the Famers had no way of anticipating killing machines like AR-15s when writing the 2nd Amendment, clearly the intent of that amendment was to protect not only the lives and property of our citizens, but also to protect our democracy itself. But allowing AR-15s in the hands of our citizens makes us less safe, and now a real threat to our democracy is heavily armed resistance to the peaceful transfer of power. A more fair-minded Court could have banned people from owning AR-15s.

So is Originalism being applied impartially and consistently or is it just a fancy-sounding ruse for justices to inject their political biases? This is an important question because our very democracy could be at risk; we don’t know how far the Court is willing to go to help Republicans in upcoming elections. Will the Court make rulings on cases involving the nuts and bolts of who is entitled to vote and how votes are counted, in a biased way in order to give Republicans an unfair advantage? This is a very real issue!