If “Originalism” is to be strictly observed, wouldn’t all six of the right-wing court be ineligible? After all, not only do you have an African-American (3/5 vote) and a woman (chattel) … but all six were born Roman Catholic, ill-favored at the time.
They don’t care about rightness or wrongness. It’s about power. Concentrated economic power. And how that will concentrate their political power. It’s an un-American attitude and it’s naught but corruption.
Thank you for this interview. It really helped me define (and defend) what I always felt in my gut. As a Christian I feel like I could change the word Constitution to Bible in most places and it would apply.
The fact that Dobbs takes away women's rights "by saying constitutional rights must be constrained by the prevailing viewpoints at a time when women didn’t have rights" is telling of the failure of originalism. It is too easy to forget that the only rights minorities and women have in the Constitution is the right to vote. All else is by easily changed statutes and in the hands of the courts. In theory they have the rights any citizen might have, including due process and equal protection, but originalism either ignores those or cuts them down as somehow not meaning what they say.
Note by the way that the originalist mindset isn't just in full flower in interpreting the Constitution. The bump-stock decision shows it is alive and well in its interpretation of a 1934 phrase without noting that the thing now under consideration wasn't even on the radar of those in 1934.
My preorder of her book just arrived. On my TBR pile.
Plus, not specially mentioned here, is the power of the Constitution is that it can be changed, and was expected to change. Why give the right to change the Constitution and say that right isn’t originalism?
Ms. Dennie offers valuable and relevant insights. Her point is important and valid: don't be fooled by people who try to make their reasoning seem respectable by giving it an objective-sounding label like "originalism." Even so, Ms. Dennie is making the same mistake as those she opposes. She accepts and acquiesces in their definition: "Originalism is the idea that the meaning of the Constitution is fixed in time, locked in when the Constitution’s provisions were ratified." That's not real originalism.
There's a real danger in thinking of "originalism" as some so-called "originalists" do, and the danger is even greater if we reject "originalism" for that reason. This is not merely an academic or theoretical issue. "Originalism" has become increasingly popular among judges, especially the majority of SCOTUS. If we don't truly understand "originalism," we can't use it effectively in the courts to counter activist judges who are misrepresenting and violating our rights.
Real originalism starts (merely starts) with the text of the Constitution and then looks at the context to try to discern the meaning of the text. But there is no reason whatsoever that our understanding of our Constitution should be fixed by the understanding of any earlier Americans of their Constitution. There is very good reason that our understanding of our Constitution should not (and cannot constitutionally) be fixed in such a manner. Our Constitution is radically different from the Constitution of 1788. That's the whole point of constitutional amendments.
Originalism started as a way to rein in judges who were blatantly violating our Constitution by pretending that judges were the supreme law of the land (instead of the Constitution). Real originalism would help rein in the judges who are abusing a fake form of originalism to defraud us of our rights. Such fraudulent "judging" is the reason for my Substack, Black-Collar Crime. Black-Collar Crime is about judges abusing their positions to commit crimes by knowingly violating our rights. See, e.g., "Fighting Black-Collar Crime" https://blackcollarcrime.substack.com/p/fighting-black-collar-crime?r=30ufvh. A related piece is "Miranda Warnings about Judges Encouraging Discrimination and Violating our Constitution" https://blackcollarcrime.substack.com/p/miranda-warnings-about-judges-encouraging?r=30ufvh.
True and honest originalists merely start--they do not stop--with the steps inherent in the definition stated by Ms. Dennie. True and honest originalists recognize that the meaning of the Constitution is not and cannot be fixed in time. To show how true originalism leads to a very different result from the result dictated by those Ms. Dennie opposes, I posted a series of pieces in twelve parts, starting with "The Dobbs Fraud by SCOTUS's Fake Originalists (Part I)" https://blackcollarcrime.substack.com/p/the-dobbs-fraud-by-scotuss-fake-originalists?r=30ufvh.
If “Originalism” is to be strictly observed, wouldn’t all six of the right-wing court be ineligible? After all, not only do you have an African-American (3/5 vote) and a woman (chattel) … but all six were born Roman Catholic, ill-favored at the time.
They don’t care about rightness or wrongness. It’s about power. Concentrated economic power. And how that will concentrate their political power. It’s an un-American attitude and it’s naught but corruption.
Thank you for this interview. It really helped me define (and defend) what I always felt in my gut. As a Christian I feel like I could change the word Constitution to Bible in most places and it would apply.
The fact that Dobbs takes away women's rights "by saying constitutional rights must be constrained by the prevailing viewpoints at a time when women didn’t have rights" is telling of the failure of originalism. It is too easy to forget that the only rights minorities and women have in the Constitution is the right to vote. All else is by easily changed statutes and in the hands of the courts. In theory they have the rights any citizen might have, including due process and equal protection, but originalism either ignores those or cuts them down as somehow not meaning what they say.
Note by the way that the originalist mindset isn't just in full flower in interpreting the Constitution. The bump-stock decision shows it is alive and well in its interpretation of a 1934 phrase without noting that the thing now under consideration wasn't even on the radar of those in 1934.
My preorder of her book just arrived. On my TBR pile.
Plus, not specially mentioned here, is the power of the Constitution is that it can be changed, and was expected to change. Why give the right to change the Constitution and say that right isn’t originalism?
Great conversation! Great post! Thank you
Ms. Dennie offers valuable and relevant insights. Her point is important and valid: don't be fooled by people who try to make their reasoning seem respectable by giving it an objective-sounding label like "originalism." Even so, Ms. Dennie is making the same mistake as those she opposes. She accepts and acquiesces in their definition: "Originalism is the idea that the meaning of the Constitution is fixed in time, locked in when the Constitution’s provisions were ratified." That's not real originalism.
There's a real danger in thinking of "originalism" as some so-called "originalists" do, and the danger is even greater if we reject "originalism" for that reason. This is not merely an academic or theoretical issue. "Originalism" has become increasingly popular among judges, especially the majority of SCOTUS. If we don't truly understand "originalism," we can't use it effectively in the courts to counter activist judges who are misrepresenting and violating our rights.
Real originalism starts (merely starts) with the text of the Constitution and then looks at the context to try to discern the meaning of the text. But there is no reason whatsoever that our understanding of our Constitution should be fixed by the understanding of any earlier Americans of their Constitution. There is very good reason that our understanding of our Constitution should not (and cannot constitutionally) be fixed in such a manner. Our Constitution is radically different from the Constitution of 1788. That's the whole point of constitutional amendments.
Originalism started as a way to rein in judges who were blatantly violating our Constitution by pretending that judges were the supreme law of the land (instead of the Constitution). Real originalism would help rein in the judges who are abusing a fake form of originalism to defraud us of our rights. Such fraudulent "judging" is the reason for my Substack, Black-Collar Crime. Black-Collar Crime is about judges abusing their positions to commit crimes by knowingly violating our rights. See, e.g., "Fighting Black-Collar Crime" https://blackcollarcrime.substack.com/p/fighting-black-collar-crime?r=30ufvh. A related piece is "Miranda Warnings about Judges Encouraging Discrimination and Violating our Constitution" https://blackcollarcrime.substack.com/p/miranda-warnings-about-judges-encouraging?r=30ufvh.
True and honest originalists merely start--they do not stop--with the steps inherent in the definition stated by Ms. Dennie. True and honest originalists recognize that the meaning of the Constitution is not and cannot be fixed in time. To show how true originalism leads to a very different result from the result dictated by those Ms. Dennie opposes, I posted a series of pieces in twelve parts, starting with "The Dobbs Fraud by SCOTUS's Fake Originalists (Part I)" https://blackcollarcrime.substack.com/p/the-dobbs-fraud-by-scotuss-fake-originalists?r=30ufvh.