How to Win at Dinner — Originalism

On April 10th, Neil Gorsuch was sworn in as the 9th member of the Supreme Court. This has sparked a national debate on the concept of Originalism, the judicial philosophy Gorsuch uses to interpret the constitution. Caught up in the debate are such hot-button issues as racism, sexism, personal liberty and religious freedom, so you can bet at least one of your loved-ones is prepared to yell at you about it at dinner this week. But you’re gonna be prepared too. More prepared. Because of me. So whether you love or loathe Originalism, here are all the finer points you need in your arsenal to make sure you humiliate your opposition tonight over chicken.

“I think the Constitution has the best words”

Before I get into the arguments, here is a basic overview of the issue. Originalism is the idea that the Constitution needs to be understood exactly as the authors of the Constitution intended it to mean at the time of its writing. Many on the Left feel that this kind of stagnant thinking simply enshrines the bigotry and biases that were the standard in 1789, and that without the ability to reinterpret the Constitution, segregation would still be legal, gays wouldn’t have the right to get married, and women may not be able to get abortions. Those on the Right believe Originalism to be necessary because it is the only way to keep the powers of the Judiciary in check, and places the responsibility on Congress to pass laws that advance social change rather than relying on 9 unelected officials. Boring, right?! Well these points won’t be boring when you’re shouting them at your spouse over thanksgiving dinner and your marriage is on the line. So unless you want your partner to pack their bags and stay in a hotel for the night because you’re an ignorant wuss who can’t back up their own political philosophy, shut up and learn what you need to say to prove you’ve got a backbone.


FOR IT (YAY ORIGINAL INTENT!)

So you love the constitution and you think the values of the founding fathers are the essence of our democracy. They can’t just be changed willy-nilly without America losing its soul. Therefore, you think their words need to be mined for their original meaning, and not simply reinterpreted by the high-queen of social justice, Ruth Bader Ginsberg.


Your beliefs in bullet points:

  1. Judges are judges, not activists.
  2. The court must strive to be objective, and Originalism leaves the least room for subjectivity.
  3. The Constitution’s original meaning is the essence of our nation, and can’t be tinkered with without risking our nation’s soul.
  4. Social progress is necessary, but when society is ready for that change, it must be implemented by congress, because they are elected by the people.

Your loved one is probably going to come at you with that old liberal standby, and say that no matter what you claim about preserving personal liberty, you’re really secretly racist. To prove this, they’ll bring up Brown Vs. Board of Education, the landmark Supreme Court Decision that outlawed segregation. And this isn’t the easiest thing in the world to defend, because you almost certainly agree that segregation was bad, but you still oppose the supreme court acting as activists and the arbiters of moral truth. The way around this is to center your argument on one principle: social evolution is necessary, but it can’t be the supreme court that implements social change. That is because the court is comprised of 9 unelected officials not bound by democratic opinion. Instead, social change should be brought about by the Legislative branch, who, if they want to change the constitution, can pass an amendment, as they did when they rightly granted women and African Americans the right to vote. After all, if you’re an originalist, you also believe Amendments must be read for their original meaning, even if the amendment is passed in the modern era.

TACTIC: Throw out this provocative hypothetical, and watch them squirm. Let’s say we passed an amendment today that we all agree is beneficial to society. But now skip forward 100 years, and by then the common understanding of many of the words used in that amendment has changed, because language always evolves over time. Do we want the Supreme Court of that day to reinterpret our meaning based on their understanding of those words, or do we want them to stick to the meaning we intended when we wrote the Amendment today? If you don’t want future generations to tinker with our modern intentions, then you’re an originalist.

And to sound extra-smart, cite the founding fathers. I bet not many of your opponents will have memorized enough old quotes to defeat you, so you’re already ahead. Here’s your ace in the hole, from that Broadway hero so many Liberals claim they love, Alexander Hamilton:

“The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove anything, would prove that there ought to be no judges distinct from that body.”

Boom.


AGAINST IT (FOUNDING FATHERS WERE NOT GODS)

So you hate originalism, and why wouldn’t you? The Founding Fathers had some good ideas, but they were also slave-owners who didn’t even include women in the statement “All men are created equal.” Remind me again why we should be hanging on their every word?

Your beliefs in bullet points:

  1. Progressive decisions by the Supreme Court are no more “activist” than conservative decisions.
  2. Originalists are just as subjective as anyone else. If they were not, why is it that originalists constantly arrive at a conservative opinion, while they happen to be conservatives themselves?
  3. The Constitution was written by men with all the biases that were standard at the time of its writing. Why would we cling to every word written by men who owned slaves?
  4. Society has not only evolved its principles. New technology must be included in our understanding of our rights, but it would have been impossible for the Founding Fathers to include words like ‘cell phone’ in the 4th amendment, or ‘tank’ in the 2nd.
  5. Why should marginalized people have to wait for Congress to pass an amendment before bigoted laws can change? If segregation could not be addressed by the Supreme Court, who knows how long would we be asking African Americans to suffer through such inhumane treatment?

First of all, call out this “originalism is objective” drivel right away. You say that originalists are objective, and they don’t bring their personal ethics to the table? Then how come conservative Originalists constantly arrive at conservative opinions? Aren’t they essentially just as politicized as the liberal judges reaching progressive conclusions? And if they operate as an arm of the conservative agenda, isn’t that activism?

The Originalist sitting across from you keeps saying that it should be the legislative branch that decides when society evolves. But (here it comes) what about Brown Vs. Board of Education?! You can talk all you want about how it’s healthier for the Supreme Court to remain objective about the meaning of the constitution, but if they didn’t step up on this decision, society would have remained segregated until Congress could pass new laws. But who knows how long that might take? Are you seriously suggesting African Americans should just have to wait for that decision to be treated as equals?

TACTIC: Throw out this zinger: “You may not like my activist Supreme Court, but I don’t like your willingness let the marginalized stay on the margins.” And then watch them cry into the soup.

Move right on to the obvious reasons why reading beyond the words is essential to applying the value intended in an Amendment. The world evolves, but the words in the relevant amendments stay the same. It becomes essential to look beyond the words into the intended value of each amendment, and then apply that value in contemporary terms. Your originalist spouse just smugly quoted a founding father, and she doesn’t think you’ve got anything up your own sleeve. She is so wrong. Skip the authors, and go right to the constitution itself.

Say this: The fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” without a proper warrant and probable cause.” Wouldn’t you think the right to be protected from an unreasonable search applies to your car? Your cell phone? But the words ‘car’ and ‘cell phone’ don’t appear in the amendment! So clearly it’s necessary to read into the amendment, find the value intended in it, and realize how it may apply a little differently now.

And lastly, remind them that not even the Founding Fathers believed in a strictly Originalist interpretation. Immediately after authoring the Bill of Rights, the authors themselves began to disagree on its meaning. But if it was written so clearly, why would they ever have to argue? Because the language is written vaguely enough that interpretation is natural, idiot.

And then laugh, because you’re a winner.