The madness of an originalist Supreme Court

Posted: 05/26/2022 15:53:41 Modified: 05/26/2022 15:51:43 I am not a lawyer. However, that does not prevent me from understanding ...



Posted: 05/26/2022 15:53:41

Modified: 05/26/2022 15:51:43

I am not a lawyer. However, that does not prevent me from understanding the absurdity of the originalist approach to the Constitution.

Although I am amazed that 55 men devoted just under four months at the end of the 18th century to produce another type of government, I am clear-headed about their accomplishment. History reveals that they weren’t totally on board, as only 42 appeared at the signing. Three of those present were uncomfortable and refused to sign. However, imagine how rare it is for 55 people, crammed into one room, to agree on everything.

And they were men. Founding Fathers, the name coined by Warren G. Harding, is too patriarchal. I prefer the Founders. I know of only two offstage contributors: Abigail Adams, who was her husband’s confidante, and Mercy Otis Warren, a playwright and polemicist who wrote a history of the American Revolution. It’s a pity that they were never in the room.

The lives of these men and women were very different from ours. They traveled on horseback or in a carriage. They probably grew most of their food. Without phones or computers, they relied on flyers and newspapers. Without airplanes, Thomas Jefferson and John Adams missed the signing of the Constitution, as they were overseas. Even a fax machine would have been helpful.

The education of women was fundamental. Luckily, Mrs. Warren’s wealthy family allowed her to sit in the room while a tutor educated her brother. His apprenticeship allowed him to write and publish.

This somewhat medieval society had no oil deposits and did not use oil. Would an originalist—that is, someone who interprets the Constitution based on what its framers originally wrote—prevent the government from legislating the many aspects of oil production? Shouldn’t there be traffic laws, no OSHA? Would an originalist court “liberate” us from the laws supposed to protect us?

Let’s go back to the dissidents who left without their bail because the Constitution did not mention individual rights. Some state convention delegates heard their reasons and adopted them.

If the 1787 document had not been modified, originalism might make sense. But the dissidents prevailed. Four years later, the Bill of Rights opened the door to amending the Constitution. According to the National Constitution Center, more than 11,000 amendments were introduced and 27 were ratified.

That so much effort has been invested in revising, correcting and maintaining the Constitution eviscerates the very notion of originalism.

In the leaked draft of the opinion that would overturn Roe v. Wade, Supreme Court Justice Samuel Alito proposes that the word abortion is not present in the Constitution. We must be aware that technology has a push-pull effect on law and ethics.

As I have pointed out, we do not live as people did in 1787. Many of the topics contained in the Bill of Rights were debated at the Convention. One of the delegates left without signing because he wanted the abolition of slavery. Congress is still discussing many of these issues. Journalists and authors write about the nature and needs of change. Teachers continue to lecture on the laws, and the Bill of Rights remains the basis for thousands of federal regulations.

Should these federal amendments and regulations be abolished because they created jurisdictions not present in the original document? What are you saying ? This chaos would result? It certainly would!

Consider that the word woman does not appear in the Constitution, despite Abigail Adams’ request. But the women existed. Most of the delegates were married. All had mothers. True, many had sisters and aunts. Why wouldn’t they grant rights to these women who were an intimate part of their lives? Why wouldn’t they recognize the strengths of women like Abigail Adams who ran the family farm, as women have done since the Middle Ages when her husband was involved in government? Or, Mercy Otis Warren, whose writing was supported by her friends Adams, Washington and Jefferson?

Most adult women today have graduated from high school. More women than men are likely to enroll in university and more likely to complete their studies. Thirty-seven percent of lawyers are women, while 38% of doctors are women. This latter statistic will soon change, as the percentage of female medical students now exceeds that of male students.

The Pew Research Center found that 70% of women and 69% of men support women’s right to choose. Given the number of female doctors and lawyers, the fight for the abolition of the Roe will be fierce.

Does the US government have legal jurisdiction over abortion? Listening to Lawrence O’Donnell’s extensive op-ed on the matter, it occurred to me that this may not be the case. For starters, perhaps prohibiting abortion is practicing medicine without a license. Consider that insurance companies control the practice of medicine by refusing to pay for procedures and prescriptions. For me, the fact that we allowed insurers to verify trained medical professionals set a precedent for unlicensed practice.

Experts say overthrowing Roe is like stepping back in time for half a century and that Alito’s reliance on the obscure – to Americans – English jurist Edward Coke, who served during the Tudors and Stewarts , contradicts Alito’s argument that abortion laws must reflect US law. and personalized. Relying on Coke’s feelings about women, abortions and witches does not solve America’s dilemma. When “Saturday Night Live” satirized Coke and its old notions, the show demonstrated just how extreme they are.

However, this case is no joke.

When Alito summoned Edward Coke to support him, he relied on what Professor Jason Stanley in his book “How Fascism Works” calls “the mythical past”. The past that Alito should draw on is how George Mason and Elbridge Gerry’s understanding of how the quest for personal freedom led to the Bill of Rights, a viable and essential part of the Constitution.

Susan has been a social worker, university professor and journalist. She is a mother and grandmother.



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