THE ORIGINALISM TRAP

An urgent argument against the seemingly prevailing interpretation of the Constitution today, with no room for anyone but well-to-do white Americans.

“The Declaration of Independence…tells us that government legitimacy requires consent of the governed.” So writes legal scholar Dennie, who maintains that this foundational tenet has been abandoned by a government active in disenfranchising the governed, especially minority voters and especially at the level of the judiciary. Many leading jurists subscribe to the theory of “originalism,” which holds that if it’s not in the Constitution as the Founders wrote it, then it’s irrelevant. This leads to legal gymnastics, of course. There’s no specific statement in the Constitution permitting gun control, allowing the Supreme Court to declare that regulation is beyond the law. However, “when it comes to regulating abortion, a lack of past regulation is no barrier to a legislative free-for-all in my uterus.” Advocating for “inclusive constitutionalism,” Dennie argues that the law is an evolving instrument—one that might recognize, for instance, that an AR-15 is not a flintlock—and that there’s no compelling reason for the Supreme Court to engage in historicism in the first place. And yet, there we are, the Supreme Court maintaining that the Constitution is frozen in time and inalterable. More feats of gymnastics ensue: The Court argues that racial gerrymandering is “justiciable” while political gerrymandering is not, when in fact so much political gerrymandering is designed to disempower non-white voters. Originalism, Dennie concludes in this cogent text, keeps the nation “from achieving a functioning democracy,” which would appear to be the point—and, she concludes, it will require a popular upswell of democratic activism, to say nothing of new laws and a new Court, to shake loose from originalism once and for all.

A compelling case for considering the Constitution as palimpsest and not Mosaic tablet.