National Policy
• Published
June 21, 2021

Why Constitutional Originalism is impractical in the 21st century

With a surge in mass shootings across multiple states, the Second Amendment has been brought back to the forefront of our political discourse. Earlier this week, hashtags like #ShallNotBeInfringed and #WellRegulated circulated around Twitter as people argued over the language of the Constitution and the intent of the Founding Fathers regarding guns. These strict interpretations of the language in the Constitution often fall under an ‘originalist’ or ‘textualist’ perspective, as seen in Supreme Court Justice Amy Coney Barret. Textualists and originalists do not believe the Constitution’s meaning changes over time — a position that faces lots of controversy, and has serious policy consequences when under close examination.

Originalism has been debated many times before. Advocates of originalism justify their position by arguing that the courts should not be revising the Constitution. They also argue that the constitution has a singular meaning that objectively withstands the test of time. It is true that the judicial branch is supposed to interpret the Constitution, while the process of actually changing the Constitution is rooted through the amendment process in Congress or through state legislatures. 

However, what textualists and originalists often dismiss is that our national politics have evolved far beyond the Framers original vision. We have a stronger executive branch that uses more executive orders and can enter into armed conflict without congressional approval. The Supreme Court has come to wield an extraordinary level of power. Moreover, our legislative branch is often embroiled in partisan battles and factions even within the same party, which Madison himself warned us against in Federalist No. 10

In fact, there are many political elements in our society that seem like they’d be written in the Constitution, but were established in different ways. For example, though it describes the Supreme Court appointment process, the Constitution does not cap the court at any specific number of justices. That is why many liberals are calling for Biden to expand the Supreme Court. Also, there is technically no “right to privacy” in the 4th Amendment. It describes the right to be “secure” in our personal affects against “unreasonable search and seizure” from police, but it certainly does not mention the privacy of our search histories or location information. Miranda rights were established in a Supreme Court decision, the filibuster is part of the Standing Rules of the Senate, and the power to call a national emergency was given to the president by an act of Congress. The Constitution doesn’t even guarantee the right to vote. 

This complex, multi-faceted political society exists because our country has a long history of using the Constitution as a starting point, not a ceiling. It was understood that the Founding Fathers were experimenting with a new form of government and living in a time without racial or gender equality, or very much advancement in science and technology - they could not fathom how far their ‘great American experiment’ would go, or what the pressing issues would be in the future. So, they kept the language imprecise and the Constitution limited. They made it an amendable, living document that was made to evolve with“we the people”. 

Furthermore, textualists and originalists seem to forget how much of our history is defined by looking beyond the Constitution. Before the Civil War early abolitionists had to fight against arguments that slavery was included in the Constitution as a vital part of the American political and economic society. Civil rights movements in the Jim Crow era fought for enfranchisement, even when legal scholars considered ‘separate but equal’ policies to be well within the Bill of Rights. Women’s rights activists like Elizabeth Cady Stanton and Susan B Anthony had to fight to move past the phrase “all men are created equal”, which is in the very first line of the Constitution. It is important to look at the text and interpret the intentions of the Founding Fathers, but we cannot govern a 21st century society the way that rich white men intended in the 18th century — something that’s well reflected in our history books. 

With the Supreme Court controlled by conservative originalists, there are several important issues that have already been subject to originalist analysis. Just last year, in Roman Catholic Diocese of Brooklyn v. Cuomo, Justice Neil Gorsuch led the majority opinion that struck down New York’s tiered restrictions for religious gatherings. Gorsuch argued that “the loss of First Amendment freedoms” would result in “irreparable injury” even though he and the court didn’t consider any epidemiological evidence about the pandemic costs without these restrictions. As a result of this decision, churches, particularly continued to be “hotpots” for COVID activity across the states, leading to rising death tolls and a prolonged pandemic. Frankly, an originalist take on pandemic policy will only endanger more lives as we continue to transition back to normal.

There are issues we have not even addressed yet on the line. Will states be able to eliminate personal or philosophical exemptions from vaccination laws to make sure we reach COVID immunity? Will non-vaccinated people without medical exemptions be liable for behaving dangerously and risking other people’s lives during the pandemic? Should freedom of speech be subject to new limits in light of how social media contributed to the Jan. 6 riots at the capital? 

What we have to remember is that our founders wrote an amendment process into the Constitution. In a nation empowered by the people, its government and its laws have to evolve with society. That is why context is so important. It includes scientific evidence, like epidemiological patterns, that guide our COVID restrictions. It includes changes in political attitudes about human rights. It is what makes the Constitution a living document. It’s time we acknowledge that the Founding Fathers were not as all-knowing as textualists and originalists revere them to be. They created a legacy that has endured hundreds of years and spread liberal principles throughout the globe, but they also created a kind of launch pad for our republic — and sometimes we need to take off from it to reach new heights. 

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