Unless you’re completely unplugged from the world (and if you are, I am occasionally jealous of you), you’re aware of what is almost certainly the most significant court decision of my lifetime.
Being who I am, a straight white man (aka “The Lowest Difficulty Setting”) who is nonetheless aware of his relative privilege when compared to others, I find it sometimes challenging to opine on issues that, let’s face it, have very little to do with me; can’t have anything to do with me except on an indirect level. I want to try to have respect for others in different situations, and want to do my best to not make it about me, which is what what white cis-het men appear to be best at.
This particular decision, however, can’t *not* be talked about; so I shall tread carefully.
In short, I think it sucks. I hate the fact that people who can become pregnant in this country now seemingly have fewer rights than a gun does, and I’m going to continue to do my damnedest to support candidates and politicians who’ll work against that, and I hope the rest of you do as well.
Moreover though, I hate the current overt politization of the Supreme Court and the law in general, and find the “originalism” arguments used in several cases this term faulty.
“Originalism” is, per the article linked above for simplicity’s sake, a legal theory “which views jurisprudence as frozen in time, flatly rejects the idea of the Constitution as a a living and evolving document and instead demands that we interpret its provisions exactly as the framers intended,” and is problematic.
If the Framers, problematic as they were in all sorts of other ways, weren’t concerned with adapting government to the times, they never would have included Article V, which allows for amendments, into the Constitution. That, along with my general values and study of history, leads me more toward the concept of the “Living Constitution”, which argues that the Constitution must be interpreted in light of the moral, political, and cultural climate of the age of interpretation.
I am, of course, not a legal professional, merely an interested party with a vaguely appropriate academic background.
Leaving all that aside, the conservatives on the court in the last several decades, champions of originalism all, don’t apply it consistently themselves. When it fits their worldview, they ignore it entirely.
Justice Alito’s argument in the Dobbs case with which we are concerned, posits that because there is no direct discussion of abortion nor the “right to privacy” in the Constitution as written or conceived of at the time of the Framers, such concepts can’t be used to support decisions like Roe.
Okay, fine. Many of us don’t agree with that idea. Including, apparently, Justice Alito himself, given his position on Bruen, which was released earlier last week.
The Bruen case struck down New York’s concealed carry of firearms law, which required “proper cause” when applying for a CC permit, favoring the “shall issue…” statutes a lot of other states make use of. The opinion was written by noted originalist Justice Clarence Thomas, citing the text of the 2nd Amendment, or at least the second clause in said Amendment.
Were originalism being applied consistently, there’s a lot more evidence of the Framers’ intent relating to firearms and their regulation, beginning with the first clause of said Amendment, “a well regulated Militia, being necessary to the security of a free State…” Combining that clause with the ample evidence of militia service and the requirement for arm in that context (including in numerous state laws and state constitutions of the time), there’s no particular argument made for the individual right to bear arms for self-defense or whatever other reason, certainly not to the standard of the amendment’s “unqualified command” cited by Thomas.
Said Amendment is one sentence long, and the first half of that sentence (well, the first 48% if you aren’t counting commas) is a qualifing clause.
Bullshit.
So…were the concept applied consistently, I’d still disagree vehemently with the Dobbs decision, but I’d at least see the logic in Constitutional Originalism from the current conservatives on the court. However, given that these two decisions, released within 48 hours of each other, apply the concept not only inconsistently, but shoddily and in a blatantly political manner, I can’t. Originalism is fine when it helps them bury a right they don’t like, but are happy to ignore the first 13 words of a 27 words of a constitutional amendment when it suits them.
