“Originalism” is just another word for “Obstructionism”

As the Senate plods toward the seemingly inevitable appointment of Neil Gorsuch to the SCOTUS, your Truthteller restrains himself from screaming how I predicted this was going to happen if Trump won the election. No point in that sort of drama, now.

Nor would there be any value in belaboring the truth how President Obama and the American people were robbed of a SCOTUS appointment for a solid year by McConnell and his Republican cronies. Yes, the Republicans should have held hearings on Judge Merrick Garland’s nomination. But no, it was not inevitable that he would have been confirmed; the Senate (and country) is now so polarized that it’s highly unlikely any Democratic nominee would be approved, even such a middle-of-the-roader like Garland.

Instead, we face the prospect of seeing the conservative Gorsuch fill the chair occupied by Antonin Scalia. Scalia was a terrible Justice from a Progressive point of view. And by several accounts, Gorsuch can be expected to be even more to the right than Scalia, especially in cases involving large corporate plaintiffs and defendants.

None of this is news to any Progressive familiar with the events following President Obama’s nomination of Judge Garland. Nor are we surprised any more by the near-universal praise of Scalia as a paragon among Justices. Nor have we allowed the often-endearing tales of his out-of-Court behavior to make us forget the hard, historical truth: Scalia’s tenure was disastrous for the future of our democracy. Anyone who needs to read the evidence can Google his record.

What is less understood is the debate about Scalia’s judicial “Originalism”, and the sub-arguments of just how “pure” an Originalist he was.

The judicial theory of Constitutional “Originalism” holds that the primary job of the SCOTUS is to ensure that the final decision in cases adheres to a reading of the USCon where the (imagined) “original intent” of the Founders takes precedence over any other decision-criteria of the Justices. In a word, according to the so-called Originalists, all SCOTUS decisions need to remain forever and rigidly in sync with the original intentions of the rich white men who wrote our Constitution.

Yes, I know. The whole notion that this theory of SCOTUS “justice”, and only this theory, is the only acceptable guideline for making final decisions on our laws is, sorry Conservative flyweights, crazy. If I must, I’ll try to explain why in one or, very likely more than one, future post. I don’t look forward to the task, nor should you, dear reader.

What concerns us now, as the confirmation of Gorsuch marches forward, is how this esoteric discussion of what we used to call “Strict Constructionism” has become the favorite topic among the TV talking heads and the pundit class. In a few words, the perceived issues may be summarized as follows:

  • Scalia was the most Originalist Justice in recent decades
  • Gorsuch is (probably) going to take the Scalia chair
  • Will Gorsuch be more, or less of an Origanalist then was Scalia?
Notice: no one seems to be asking the much more important question, namely, to what degree will this new Justice continue the recent SCOTUS trends of ruling against citizens in favor of corporate interests and undermining voting rights?

Instead of debating Gorsuch’s conservatism versus Scalia’s, commentators need to be reminding us that the real impact of “Originalism” is to serve as a further block of the movement toward a more progressive, just, informed society.

Instead of accepting the stupid, even evil idea that the USCon is somehow magically the best guideline for judging public policy going forward, our leading thinkers should be exploring the many ways in which the Constitution is obsolete.