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Originalism is a huge grift

Go back in time with me to the 1860s. The Fourteenth Amendement to the U.S. Constitution has just been drafted, containing the following text:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

This is one of the most important sentences in American history. It affords to anyone born on U.S. soil the full rights of U.S. citizenship – or does it?

Conservatives including Jeff Sessions, Ann Coulter, and Michael Anton (who wrote an odious op-ed for The Washington Post on this very topic) have long crusaded against this clause of the Fourteenth Amendment, despite its clear and obvious meaning and intent. The amendment was first meant to ensure that descendants of slaves were Americans, but its power extends far beyond that cause, as it simplifies the entire project of citzenship without requiring the complex and often controversial de sanguis (by blood) systems of many other countries. It makes assimilation easy.

So why does the hard right rail against its original intent? Because they think it’s a giveaway to “illegal immigrants” who can enter the country, have children, and be certain those children are Americans.

You’ll notice I put quotes around “illegal immigrants.” That’s because, in the 1860s, when the 14th Amendment was ratified, there was no such thing as an “illegal immigration.” It’s a modern concept and would have been incomprehensible in 19th century America, where virtually every ancestor of any person calling himself/herself an American arrived via a method that we would, going by latter-day legislation, in theory call “illegal” but don’t because, well, then everyone’s perceived legitimacy in the country would be at stake.

So an originalist reader of the 14th Amendment would clearly have to say that, nope, you can’t interpret it as something meant to exclude “illegal immigrants” and their families from the rights of citizenship, since no such distinction between legal/illegal migration existed at the time. You’ll be shocked to learn that conservative originalists – i.e., people in the legal community who purport to interpret the Constitution in the context of its original meaning at the time of enactment – don’t hold this position.

They’re not just hypocrites – they’re subscribers to an incoherent worldview. Originalism is often contrasted with “living constitutionalism,” the practice of reading the Constitution as a living document whose meaning changes with time and requires new readings aligned with the culture at-large.  the implication is oftne that while living constitutionalists (read: liberals) are “legislating from the bench” as “judicial activists,” conservative originalists are simply following the letter of the law. This is absurd, and not just because of the hypothetical 14th Amendment issue I raised. There are so many cases in which this comes through:

2nd Amendment

Perhaps the most infamous, the 2nd Amendment contains (indeed, starts with!) the phrase “A well-regulated militia, being necessary…” Gun ownership is framed right then and there in the context of military service, not an individual right to own as many assault rifles (which didn’t even exist in the 1700s) as possible. Yet the latter has become the bog-standard position of conservative “originalists.”

15th Amendment

A refresher; this amendment says:

“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

And yet it so often is, by voter ID laws and other bullshit that is often explicitly targeted at black voters. Original intent would preclude any such barriers, yet conservative “originalists” are invariably the ones pushing policies in this realm, from statehouses to the judiciary.

 

The endless conservative assautls on the Voting Right Act demonstrates the bad faith of originalists, who are happy to ignore both the intent of the Reconstruction Amendments (13th-15th) and the will of the Congress that enacted the voting-specific legislation (as explicitly autohrized by the text of those amendments) to instead read arcane theories about the “sovereign dignity” of the states into a Constitution that doesn’t contain them. Shelby County v. Holder is the relevant case here.

Don’t fall for originalist jargon from the likes of Neil Gorsuch or pending Supreme Court nominee Brett Kavanaugh. They’re conservative reactionaries opposed to equality, and that’s that.

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