The Founding Fathers Wanted Originals, Not Originalists

Livid, irate, fuming, vexed, aggrieved, outraged, enraged, furious, incensed — all synonyms for feeling angry, some with stronger connotations than others. And yet, right now none of them feel adequate. Even if I could add up the individual levels of emotion associated with each word, I still wouldn’t be able to express what so many women — and people who simply believe in equal rights — are experiencing right now.

In a 52–48 vote that never should have been allowed to take place, Amy Coney Barrett was confirmed to the Supreme Court, effectively beginning this country’s backslide into the 1700’s.

Amy Coney Barrett is a threat to our rights and all the progress that America has made to achieve its currently-imperfect-but-better-than-the-1700’s policies.

Roe v. Wade is teetering on the edge of a cliff and about to fall into a deep, dark abyss. While that metaphor may seem dramatic, it’s not. The consequences of repealing Roe v. Wade could quite literally be deadly. To be clear, repealing Roe v. Wade does not mean the end of abortions, it means the end of safe and regulated abortions. It means women receiving abortions in unsanitary conditions from people who might not even have training in how to perform the procedure. It means women throwing themselves down flights of stairs in the hopes that their injuries will cause a miscarriage. It means women using coat hangers to try and perform their own abortion, which, under the best of circumstances, may cause infertility and, under the worst, may be fatal.

Yet, Amy Coney Barrett’s appointment poses a danger to far more than women of childbearing age.

What makes Barrett so dangerous? She is a self-proclaimed originalist.

Originalists believe that the United States Constitution is meant to be interpreted at face value, as it was “intended” to be applied when first written in 1787. The irony of originalism, however, is that it completely contradicts the Founding Fathers’ instructions. When the Constitution was written, we were explicitly instructed by its drafters to treat the Constitution as a “living” document. This means that, while the words used to articulate the law remain the same, those words are meant to be interpreted through the lens of current times. Thomas Jefferson felt so strongly about the living nature of the Constitution that he even discussed it in his own personal letters. Jefferson wrote in a 1789 letter to James Madison: “no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation.”

Roe v. Wade is a great example of this. While most people think of this landmark case as ensuring the right to an abortion, it actually ensures a woman’s right to privacy, making abortion a choice for her to make for herself, without the government dictating what she can and cannot do with her body. This right to privacy is found in the Due Process Clause of the Fourteenth Amendment, ratified a little more than a century before the 1973 decision, which protects everyone in the United States against the arbitrary deprivation of life, liberty or property by the government.

Less than a week ago, on October 22, Senate Republicans officially advanced Barrett’s nomination. During the proceedings, Senator Lindsey Graham, while defending Barrett as the right choice, said “America is for all of us.” Even if that were true in practice now, it certainly wasn’t true in 1787. When the Constitution was written, Native Americans had absolutely no rights, even though they were displaced and forced into certain areas of the country so that British colonists could seize the land where they made their homes, and anyone who was Black only counted as three-fifths of a person. Is that the kind of America you want to live in? Because with originalists sitting on the Supreme Court, you have to wonder, is that what originalists want us to return to? Or is it more that they want to hide behind that label as a way to justify taking such antiquated positions and taking away people’s rights?

The only way to even begin to rectify this situation is to expand the Supreme Court and add justices who believe in a living Constitution — just as the Founding Fathers intended and instructed. Otherwise, the inequalities, inequities, and prejudices that exist now, will only be the beginning of the loss of a democracy the Founding Fathers sought to protect and preserve for the “living generation” when they drafted the Constitution.