As a public relations stunt, it’s hard to do much better than “Originalism.”
With the courts taking on increasingly volatile political decisions, it’s comforting to think that there’s an unshakeable, predictable philosophy motivating jurists. That conservatives evaluate legal questions through the immutable lens of the public understanding of the Constitution at the time of ratification reassures the public that whatever anyone thinks of conservative opinions, at least they’re based in principles and not shifting erratically based on the whims of the contemporary political aims of the GOP.
It has always been a lie of course, but it’s a pretty successful one.
The conservatives on the Court have all but given up the facade of Originalism, granting cert in a gay rights case signaling an intent to protect Catholic Social Services who got cut off by the Philadelphia adoption program for refusing to place children with same-sex couples. The basis for the looming decision, previewed over the last several years by Supreme Court Oracle Justice Alito, is that religious freedom requires government respect the religious freedom to violate discrimination laws. The only problem with this plan is that the conservatives have already ruled that the “Originalist” read of religious freedom is the exact opposite. Apparently there are more different “Originals” in the First Amendment than there are in Ray’s Pizza establishments.
For a step-by-step rundown of how this came to pass, check out this from Mike Sacks, but the nutshell version is that Justice Scalia handed down the OriginalTM meaning of religious freedom back in the 90s at a time when society dared to think it meant respecting even those crazy religions that hadn’t accepted Christ as their personal savior. Scalia schooled us all on what the Founders were really thinking and explained in Smith that the First Amendment didn’t give individuals the right to say that laws violated their religious beliefs.
But today, religious freedom is en vogue among the MAGA set. Taking a page from the old segregationist schools who tried to keep out black students based on perverted religious arguments, companies like Hobby Lobby have wrapped themselves in religious liberty to keep from providing comprehensive health plans to employees. With religious liberty becoming discrimination’s most fashionable excuse, the Supreme Court finds itself at a crossroads staring back at Justice Scalia’s opinion in Smith and poised to dutifully explain that everyone should disregard the “Original” understanding of the Framers in that case and respect the “Original” understanding of the Framers they’re laying out now. By next year, everyone in FedSoc will happily tell you that this is what religious liberty always meant and that we’ve always been at war with Eastasia.
Obviously, this isn’t the first time the defenders of “WWTFD” (What Would The Framers Do) have had to cynically run from the clutch of slaveholders they hold up as demigods. Whenever gun regulations show up, they hilariously define the “original” meaning of the Second Amendment based on post-Civil War scraps because everyone saw George Washington march an army out to quash the Whiskey Rebellion providing pretty compelling evidence that the Founders did not think “bunch of drunks stockpiling individual firearms” had anything at all to do with the Second Amendment. In a comical effort to make this all make sense, scholars pitched the idea of “Originalism at the Right Time” which is akin to saying “I’m a virgin except for all the sex stuff.”
Still, even with the core philosophy in tatters, what more liberal legal scholars don’t understand is just how powerful “Originalism” is as a tagline. There’s no comparable judicial philosophy that can convince the uninformed that liberal jurists aren’t just making stuff up as they go along. The most popular alternative forwarded in liberal circles is “fair minded constitutionalist” which just underscores the idea that liberal jurists make case-by-case decisions based on fairness which is admirable but not great branding for a philosophy. At that point, just go back to the “Living Constitution” formulation. Find something that is intellectually consistent and provides a measure of historical stability. Like “A Reconstructionist” who views everything through the lens of a robust reading of the Fourteenth Amendment or something like that.
Anything that can stand up to the cult of Originalism. Because if anyone doubts how powerful that fake narrative is, take heed of just how many FedSoc talking heads are going to find a way to explain how this new, more Originaler opinion was the true Originalism all along.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.