What the fuck is an originalist

Conservatives love to say that they are originalists when it comes to the Constitution.

They also love to say they want to appoint judges that are originalists in their intent and scope interpreting the Constitution. In popular culture the progenitor of this movement was Antonin Scalia who was famously paraphrased saying that the Constitution is deader than dead. And when one reads it they should do so using the frame of interpreting the Constitution as the founders intended. Antonin Scalia’s most famous decision using this frame of thinking regularly cited by the public is District of Columbia versus Heller.

Before this decision the second amendment was regularly interpreted as a single right that guaranteed states the right to keep and maintain a militia and a regulated right to keep and bear arms. The history of this interpretation holds some controversy. Southerns states wanting to keep weapons to prevent slave insurrections generally supported the idea the right to bear arms was separate from the right to maintain a militia. Northern states on the other hand considered the two rights to be tied together meaning that the right to bear arms should be regulated using common sense measures. In many towns in the north it was illegal to carry a weapon into a bar and or residence. Guns were often kept in a single storehouse and citizens used these guns in times when the militia was needed.

Citizens on the frontier generally owned firearms but western towns often limited how and when they could be used. After the Civil War the northern interpretation of the right to bear arms gained weight. For more than one hundred years this interpretation was validated by the supreme court. This all changed with the Heller decision. Citing precedent dated back to antebellum times Scalia constructed a new interpretation of the second amendment.

An individual had an absolute and inalienable right to keep and bear arms. This interpretation drastically changed from previous court precedent. It was by all accounts and activist decision. Yet because of Scalia’s rhetoric and reputation he built it was heralded as an originalist decision. This is straight up bullshit.

Now, that Donald Trump has won the supreme court will be filled with “originalists” of the Scalia ilk according to conservatives. This means decisions that were made over the past fifty years will be overturned. Roe v. Wade and Obergefell v. Hodges as the two biggies that will probably suffer. I am not familiar with the arguments with Roe v. Wade but I am very familiar with the arguments in Obergefell and Hodges.

Unlike the Heller decision Obergefell was a pretty strict interpretation of what the Equality Clause of the Fifteenth Amendment means. Conservatives of course will probably say that this Amendment relates to slavery and should be used only this context. This would ignore the long history of using the equality clause to evaluate things like interracial marriage and laws against it. Additionally, reading the text of the Amendment like a New Critic would suggest that its application would be far greater than slavery. Justice Anthony Kennedy determined that Gays have an equal right to marry because heterosexual marriage violates the equality clause through the process of giving heterosexual couples special rights different from homosexual couples. Gay marriage was therefore validated through this interpretation. If Scalia was to right an “originalist” decision this would be the one. But of course being a conservative he did not.

Now that Trump has control of the presidency he will be appointing conservative judges. They are not originalists. And they will be interpreting the Constitution from a conservative perspective. This means years of court decisions using frameworks and interpretations made by the court will now be bullshit. Fuck originalism.

The constitution is a living and changing document that is framed by how it is interpreted. Minorities given rights through the court will now have to fight tooth and nail get those rights back. Conservatives will roll back a number of cases all the under guise of orignalism but just to be clear they are not originalists they are conservatives.