The lawyers and Supreme Court justices who espouse originalist doctrines need to take it all the way.
Since they believe that our Constitution means the same thing it did when it was written, then white wigs, frock coats, and quill pens need to be the order of the day.
You can’t have it both ways: you’re either an originalist who lives and abides by eighteenth century customs and culture or you live in the modern age.
And I’m still trying to figure out their method of time travel and mind reading: how exactly do they divine what a particular jurist or legislator had in mind when they chose a particular word in a particular statute or provision?
Given their problematic reading of current events – see 2013’s Shelby v. Holder decision that there is no need to continue monitoring southern voting laws because, obviously, racism is over* – it’s difficult to see how they could accurately interpret the bewigged, befrocked, and bequilled minds of the past.
They’re embrace of all things Founding seems particularly jarring when the Founders Founder — the person who wrote the Declaration — warned against the exact kind of veneration originalists espouse.
Jefferson, in a letter to Virginia lawyer and sometime correspondent, Samuel Kercheval, written around 40 years after the Declaration of Independence, famously punctured the holier than thou attitude of those who embrace the idea that it, and the ideas it contains, are written in stone.
Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew this age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent and untried changes in the laws and constitutions . . . . But I know also, that laws and institutions much go hand in hand with the progress of the human mind” (qtd. in Morgan 47).
Morgan, Edmund. “Back to Basics.” New York Review of Books, 20 July 2000: 47-49.
Unfortunately, I’m sure the legal hands who believe in the claptrap of textual fundamentalism have a ready reply to Jefferson’s pointed and specific refutation of their pet doctrine. They loose it towards any belief that interferes with their conservative interests . . . and put it back in its cage when it supports said interests (looking at you Bush v. Gore and your convenient elision of the 10th Amendment states rights clause: where’s federalism when a liberal needs it? Oh yeah, back in its cage).
I’m waiting with my box of leeches to provide medical attention when they become ill. With my barber’s license, I meet the originalist definition of a medical provider.
* From Roberts’ decision: “There is no denying, however, that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.” And the mental gymnastics to make such a decision are clear just one paragraph later: “At the same time, voting discrimination still exists; no one doubts that.”
And the originalist basis of this? He cites favorably an earlier decision that “the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections.” Still here with my box of leeches.
https://www.law.cornell.edu/supremecourt/text/12-96#writing-12-96_OPINION_3
Make America Think Again 