Posted on June 9, 2017
Right-wing radicals on and off the Supreme Court claim to follow a theory of interpretation based on the “original meaning” of the Constitution. Because the Constitution was written by relatively progressive liberals, there is no possibility that “originalism” could get it right in any meaningful sense. That is, modern right-wing arguments would seem almost incomprehensible to the Founders.
As a central issues, there is the question of common law: the gradual development of judge-made interpretative law on a case-by-case by basis. The Constitution is thoroughly rooted in the common law of the time, and refers back to language developed over centuries of judging. But the originalists want the process of common law to stop dead in its tracks in 1787 (which is definitely a problem when addressing later Amendments). They want Constitutional law to stop developing, to stop being reinterpreted, to stop changing. But the world we face now is so drastically different from an 18th Century colony, there is no way that their reactionary fantasy could even be internally coherent.
Hence actual applications of “originalism” always turn out to be little more than the assertion through main force of will of a certain brand of right-wing utopian aspiration.
“Citizen’s united” is perhaps the classic example. The actual founders thoroughly distrusted corporations, wanted them kept in straight-jackets, and could never have believed that any sane jurist would award them with an unlimited Constitutional right to sway elections through the expenditure of vast sums of money.