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Letters to the Editor: ‘Originalism’ is a bad disguise for conservative judicial activism

The Supreme Court building.
The U.S. Supreme Court building glows in the night in Washington on March 18.
(Washington Post)

To the editor: Originalism is not “common sense,” contrary to University of Virginia law professor Lawrence B. Solum’s assertion. Instead, it is the noxious idea that we are bound by the prejudices and bigotries of long-dead generations in interpreting broad terms like “equal protection of the laws.”

Take the due process clause of the 5th Amendment, preventing the government from depriving a person of “life, liberty, or property, without due process of law.” What did “liberty” and “property” mean to the slave owners who framed that amendment? Their definition of those terms has been shown by history to be not just wrong, but also evil.

On top of being morally repugnant, originalism is self-contradictory. The framers could have written into the Constitution an explicit requirement that terms were to be construed according to their common meaning at the time of ratification. But they didn’t, meaning that originalism is affirmatively placing a modern meaning on the Constitution it most certainly did not have at ratification.

In fact, the framers were steeped in the common-law tradition, in which judges continuously refined and changed the law over time.

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Branden Frankel, Encino

The writer is an attorney.

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To the editor: Solum shrouds the radicalism of his position on judges and the Constitution with a clever but disingenuous line: The Constitution’s “words should be read as the public would have understood them at the time each provision was written.”

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As historians know, discerning intent and meaning is the most challenging and most contentious part of interpreting the past.

But Solum does not consider such responsibility a burden. Instead he shows his breathtaking hubris, shared by Supreme Court nominee Judge Amy Coney Barrett, in saying, “Why would anyone object to this common-sense idea?”

Originalist legal scholars will tell us what the text means and the rest of us are left to bow down to their “common-sense” judgments. Some democracy.

Michael Provence, La Jolla

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The writer is a professor of history at UC San Diego.

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To the editor: One phrase in Solum’s piece jumped out at me: “Barrett did say that Roe [vs. Wade] is not a ‘super-precedent,’ a kind of case so widely accepted that it could never be overruled.” He then compares it to the 2015 decision in the gay marriage case Obergefell vs. Hodges, stating it “reflected a change in social norms that seems likely to stick.”

I am not sure how he and Barrett conclude that allowing a woman to have control over her own body and healthcare decisions is not a super-precedent, while Obergefell legalizing gay marriage, which I celebrated, is.

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Roe has been the law of the land since 1973; we will soon celebrate 50 years of freedom from government control of our bodies. Polls show that women overwhelmingly support the right to choose. How is this ruling not a super-precedent?

I am not a legal expert. I am a woman who believes that no woman is free until she can control her own body and make her own decisions about what happens to her body.

Jill Gluck, West Hollywood

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To the editor: Solum’s defense of originalism comes up empty. Originalism requires historical and linguistic expertise that most legal professionals do not have. History is shrouded in ambiguity and thus is susceptible to manipulative interpretations.

For example, Solum states that an originalist could not have affirmed the “separate but equal” doctrine. How could he be so sure?

Is it not plausible that an originalist could have found that the 14th Amendment’s framers distinguished between political and social equality — say, between voting and jury service on the one hand, and education and public transportation on the other?

It is unfair to force litigants to tailor their arguments to fit a judge’s historical preferences. Of course, the historical context is important, but it should not be the determinative factor.

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Above all else, the Constitution commands that the federal government ensure the general welfare. It guarantees equal justice under the law. Its words belong to all of us, not just the generations that wrote them.

Charles Kohorst, Glendora

The writer is an attorney.


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