Interpreting the Constitution: Originalism
There is a popular method of interpreting the Constitution among conservatives called “originalism.” The theory says that if there is ambiguity in the words of the Constitution you must revert back to what the original drafters believed it to mean. This way of thinking is most popular in area of 7th Amendment jurisprudence where the drafters used the term “common law.” We use the conception of common law from 1791 as the basis of what is and is not common law for the purpose of the 7th Amendment.
Conservatives, especially social conservatives, like originalism because it cannot be used to justify a constitutional right to an abortion. Since the words cannot be found in the document, and the drafters of the Constitution, Bill of Rights, or the 14th amendment had no intention of protecting the right to choose at the time of adoption, there is no room for such a right under the interpretive scheme. It also means a narrower reading of the 1st Amendment, the Commerce Clause, and a whole host of other items that allow the Federal government to get big and powerful.
Today I learned that originalism has a serious flaw, more so than the obvious problem that the Constitution shouldn’t be a stiff unbending document. It has to do with Brown v. Board of Education. There is an old saying about Constitutional theories: if you cannot arrive at the belief that Brown was rightly decided, then you don’t have a good theory. Problem being that the Congress which adopted the 14th Amendment, the Amendment which the Court in Brown said made segregated schools unconstitutional, approved of segregated schools in Washington, D.C. the same year it ratified the 14th.
Seems to me that represents pretty clear original intent that segregation was all fine and good. Which begs the question… do we really want justices who believe original intent is such a great interpretive theory?