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Norbert Bufka

Author  ยท  Historian

Originalism is not good for our country

   The United States Senate confirmed the nomination of Amy Coney Barrett to the Supreme Court on Monday October 26, only six weeks after Ruth Bader Ginsburg passed away.  The speed of the confirmation is not the only problem with this nomination,  it is Barrett herself. She is an originalist and a Catholic traditionalist, both of which protend   regressive court decisions in the years ahead.

   Originalism, as I understand it, means that the person tries to interpret the Constitution the way the writers meant it. I am not a lawyer, but that appears to be a flawed view for several reasons.

The first is that the writers did not agree on the meaning of the Constitution, when they wrote it. this is why they compromised over several issues. This is why there was so much animosity between Alexander Hamilton and Thomas Jefferson in the Wahsington administration. From this division soon came two political parties.

    The second reason this is a flawed view of the Constitution is that originalists oppose “judicial activism”, which is a fancy phrase to indicate the Court is making laws instead of interpreting them. Usually this argument is used agains progressive decisions or those supporting human rights. They don’t bother to point out that the most egregious “judicial activism” in recent years was the Citizens United decision which declared that corporations have the  human rights of the First Amendment. Soon followed the Hobby Lobby decision which gave the corporation religious freedom.

If the originalists are sincere about their quest of the understanding of the founders, then they wills surely crack down on the abuse of the Second Amendment, which clearly states that ownership of guns is for the purpose of forming state militias, not the right to establish a personal arsenal.

   Will the originalists on the Court now declare our electoral system unconstitutional because states have mandated that the electors vote for the candidate who won the popular vote? This is not in  the Constitution.  If so, the result will be an elite of 538 people choosing our  president rather than the people.

   The confirmation of Barrett to the Supreme Court presents us with a serious problem on the Court with six members being originalist and six being Catholic. Just as the originalists do not reflect American values regarding the Constitution , the six Catholics do not represent the main values of Catholicism nor core American values of equality and democracy. Together these six Catholics represent a minority of Cathollics among a minority of Americans, yet they hold a majority vote.

   Finally   the writers of the Constitution knew that it was not aperfect document and included two ways to amend it. so far, it has been amended 27 times. Do originalists want to take away these amendments which include freedom of speech and religion, freedom of the press, the right to assemble, right to protest, women’s right to vote and prohibition of  slavery?



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