Originalism, the idea that the Constitution must be interpreted by the historical context of its meaning at the time the document was written, is a leading conservative dogma held by some members of today’s Supreme Court and unfortunately, it does a great disservice to the people of these United States.
Recently a Federal Court overturned a Maryland law that requires handgun purchasers to secure a license. The court relied on rulings from the Supreme Court that gun rights must be tied to the laws that existed in the 1780s. This ruling may be overturned but it is a perfect example of the flaws of originalism.
Handguns from the late 1700s are incomparable to today’s guns. Automatic handguns with magazines did not exist in the 1780s. In fact, single-shot handguns required a bit of work between shots and all were quite unreliable. People were allowed to own and bear arms but the differences between that world and our world today are so great that it is foolish to place excessive meaning on context. We need justices who interpret the Constitution based on the world today because it is the 21st century, not the 18th.
Think of context insofar as the signers of the Declaration of Independence did not believe that “all men were created equal” or were even equal under the law. Many owned slaves. Even white women were not equal to white men. It was Lincoln who took Jefferson’s words and reinterpreted them to include slaves as justification for the sacrifices of the Civil War dead at Gettysburg. Despite Lincoln’s address, the nation was originally “dedicated to the proposition” that only white male property owners were equal, a proper context often ignored.
The Eight Amendment outlaws cruel and unusual punishment. Flogging was acceptable when the Constitution was written. So was the pillory, branding, and other forms of punishment that the Supreme Court would never approve today. Supreme Court must often ignore the context of the 18th century because it makes no sense in the modern world.
The problem with originalism is that it precludes the Constitution’s status as a living document, one that adapts and changes with the times. Citizens did not get a public defender for non-capital crimes until Gideon v. Wainwright in 1963. Would originalists have nixed the idea of public defenders because they were not provided in 1788? The Constitution does not say one must be read their rights but after Miranda v. Arizona in 1966, the Supreme Court made it the law of the land. These rights are enshrined in law but are glaringly absent from the original document. Those rights were established by how the justices interpreted the Constitution in today’s ever-changing world and both Gideon and Miranda are more than compatible with the original document. In fact, both cases represent an enhancement of our civil rights.
The Constitution is an outline for government, not a detailed action plan. The original “bundle of compromises” had numerous flaws that have led to major changes to the document through amendments. Originalism relies too heavily on context which practically renders the Constitution a dead document on June 21, 1788, the day it was ratified.
Dudley Thompson lives in Girdletree, MD., population 106. He was born, raised, and lived most of his life in Baltimore. He worked for the News-American on the advertising side until it closed in ‘86. His second career was teaching in juvenile jails for the Maryland State Department of Education. He holds a Masters in Liberal Arts from Johns Hopkins University, ‘77, and a B.A from the University of Maryland,’74.