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Originalism has featured prominently in each of the last three Supreme Court confirmation battles – those of Neil Gorsuch in 2017, Brett Kavanaugh in 2018 and now Amy Coney Barrett. Each time, misconceptions about this theory of constitutional interpretation have swirled: Isn’t originalism self-defeating because the Founders weren’t originalist? Don’t originalists ignore the amendments written after 1789? Do originalists think the Constitution applies only to horse-drawn carriages and muskets?
As a constitutional law professor, the author of “A Debt Against the Living: An Introduction to Originalism,” and an originalist, I’d like to answer some frequently asked questions about originalism – and to debunk some of the myths.
This is also why originalism can and does justify Brown v. Board of Education, the landmark school desegregation decision. The 14th Amendment’s privileges or immunities clause – which provides that no state shall make or enforce any law that abridges the privileges or immunities of U.S. citizens – was an anti-discrimination provision with respect to civil rights under state law. If education is a civil right – and it is – then once it is acknowledged that segregation was never about equality but rather about keeping one race of Americans subordinated to another, segregated public schools obviously violate the Constitution.
Is originalism just a conservative ploy?
That brings us to the final misconception: Isn’t originalism just a rationalization for conservative results? The short answer is “no.” Originalists take the bitter with the sweet. They may not like federal income taxes or the direct election of senators, but they accept the original meaning of the 16th and 17th amendments on those points. Moreover, originalists often believe – whether on abortion or same-sex marriage, for example – that controversial political and moral questions should be decided by the democratic, legislative process, a process that can lead to progressive, libertarian or conservative outcomes.