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Thomas’s opinion in Bruen shows that for all its pretense, originalism in the hands of this Court was fake. Justice Samuel Alito’s use of originalism in Dobbs v. Jackson Women’s Health Organization shows it to be dangerous and reactionary.
Dobbs distorts history too. Abortion was legal at the time of the founding (up until quickening), but faced bans later in the 19th century. But here was the heart of Alito’s opinion: “The Court finds that the right to abortion is not deeply rooted in the Nation’s history and tradition.” What that means, in practical terms, is the Court looked to a time when women could not vote or sit on juries, when Black people were slaves, when sexual orientation was a shameful secret. The opinion purported to just turn the issue of abortion rights over to the people in the states, but in terms of the Constitution, it would repeal the 20th century.
It fell to Thomas to spell out the consequences of this vision: targeting marriage equality, LGBTQ rights, and the right to contraception, among other things. At least 10 of his former clerks are now federal judges. We can expect some to pick up on his hint and take up the cause in months to come.
Yes, those appalled by these rulings should make the point that they mangle history. We will have no choice but to point to other better readings of the past.
But it is well past time that liberals on and off the courts spell out why this approach — this sudden conversion to originalism in the two biggest cases of the year — is an absurd way to run a country or interpret a constitution. It cloaks conservative policy choices in pretentious garb. But it is hardly a coincidence that these two rulings would allow red states to ban abortions while barring blue states from regulating guns.
Justice William J. Brennan Jr. rebuked the first arguments for originalism in the 1980s. “We current Justices read the Constitution in the only way that we can: as twentieth-century Americans,” he said then. “We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be: What do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.”
Today we might find Brennan’s argument too vague, too much a cloak for liberal justices making liberal rulings. But now we have conservative justices pretending to use history to advance their own policy goals. Liberals and progressives will need to offer robust and persuasive public arguments. That’s important for the courts. It’s even more important for the court of public opinion.
Brennan’s basic point was enduring and right: the only way a great nation can govern itself is to recognize that the Constitution respects and advances the great goals of freedom, dignity, and democracy in a changing country in changing times. Right now, as used by this Court, originalism just provides cover for a right-wing political agenda. And to paraphrase Antonin Scalia of all people, it’s nuts.
Michael Waldman is president of the Brennan Center for Justice at NYU School of Law. A nonpartisan law and policy institute that focuses on improving systems of democracy and justice, the Brennan Center is a leading national voice on voting rights, money in politics, criminal justice reform, and constitutional law. Waldman, a constitutional lawyer and writer who is an expert on the presidency and American democracy, has led the Center since 2005.