U.S. Supreme Court's 'Originalism' Throws Justice Back To The Dark Ages

In the summer of 2022, the US witnessed a dramatic change in how the majority of Supreme Court justices understand the Constitution.

Photo Insert: Some Supreme Court scholars see the court’s evolution as the rise of “a profound and principled constitutional theory,” while others see it as “conservative policy choices in pretentious garb.”

At the end of a single term, the court rejected the long-standing constitutional right to abortion, expanded gun rights, and ruled that religion can have a bigger role in public institutions, Morgan Marietta wrote for The Conversation.

These outcomes reflect a seismic shift in US law and policy, but scholars of the court dispute what kind of change it was, exactly – a principled or partisan one. Some Supreme Court scholars see the court’s evolution as the rise of “a profound and principled constitutional theory,” while others see it as “conservative policy choices in pretentious garb.”

The public’s confidence in the court, meanwhile, has fallen after the Dobbs v. Jackson Women’s Health Organization abortion ruling to the lowest level since records began in the 1970s.

A professor of political science at the University of Massachusetts Lowell, Marietta says “one view of the dramatic change at the court is that it reflects a long-running debate between two constitutional theories, or competing ways of reading the document. The new court upholds originalism, which has replaced its rival, living constitutionalism.

“The theory of originalism argues that the core purpose of a written Constitution is to protect against the government’s inevitable bad behavior. The best way to defend individual rights and ensure a stable government is to enforce the Constitution’s exact language and the meaning it expressed to the Americans who ratified it,” Marietta explained.

From an originalist view, allowing clever lawyers to see the Constitution as evolving without the endorsement of the people simply defeats its purpose. So, this constitutional theory holds that the document can only be changed by amendment, but not by courts.

“The theory of living constitutionalism, meanwhile, is rooted in the idea that the Constitution should adapt to the American people’s evolving values, as well as the needs of contemporary society. This allows the SC to reinterpret the meaning of the language and expand the rights protected by the Constitution. One side of the debate believes that upholding the true meaning of a written Constitution requires stable principles, while the second believes it requires evolving ones. The two ways of reading the Constitution are not reconcilable,” Marietta stressed.

Originalism does not appear in the 1787 US Constitution and if goes by the originalist theory as the basis of law, then the Basic Law cannot be expected to rule on such matters as motor vehicles, warplanes, nuke energy, same-sex unions, sex assignment, assisted suicide, internet, cell phones, and microprocessing, none of which were in existence in 1787.

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