The Supreme Court's mythmaking
Today's occasion for a diary is a clever piece in Politico by Joshua Zeitz about recent Supreme Court decisions. Apparently, the ruling faction of the current Supreme Court believes in a doctrine called originalism, which argues that:
all statements in the constitution must be interpreted based on the original understanding "at the time it was adopted".
So, presumably, to do originalist interpretation, here's what you do: In applying a portion of the Constitution to validate or invalidate any particular law, you go back to the specific time when that portion was inserted into the Constitution, you ask about what the situation was at that time, and you try to sculpt the law as if we were all living in that time. It's a form of brutally-enforced nostalgia.
Already I hope you can see the problem with this sort of thinking. Instead of thinking proactively about what to do about this time and place, the current Supreme Court creates a myth about a lost era.
As for the clever piece, it argues about a recent decision concerning gun control that:
by its own, shaky logic, there is simply no compelling, originalist argument for a constitutional right to individual gun ownership. Framers of the Bill of Rights firmly held that the right to own guns existed solely in concert with the obligation to fulfill militia service and preserve a well-regulated peace.
As for the decision to invalidate Roe v. Wade, the clever piece says:
The court also relied extensively on history to prop up its decision overturning women’s constitutional right to terminate a pregnancy, arguing that “the overwhelming consensus of state laws in effect in 1868,” when the Fourteenth Amendment was ratified, criminalized abortion. This is too clever by half. By the majority’s originalist standard, we should be guided by the prevailing laws and traditions in place when the Constitution was adopted. In the late 18th century, when Congress drafted the Bill of Rights, common law held that abortion was not criminal until the moment of “quickening” — the moment when a woman first felt a fetus move or kick. She alone could attest to the facts. In English and colonial courts, if a woman testified that her fetus had not been quick, she was held harmless of charges. Well into the 19th century, ads for patent abortion medicines ran prominently in newspapers and journals. States began outlawing abortion only in the mid and late 19th century, largely in response to efforts by (male) doctors to de-legitimize midwives and other paraprofessionals. By originalist logic, those laws were unconstitutional and should not be a basis for later interpretation. My point is not that abortion is constitutionally protected because it was a common law right in 1787. Rather, the court’s majority is cherry-picking its history, grasping for any historical example that props up the end it hopes to achieve.
What the clever piece says, then, is generally true, but one thing needs to be added: neither guns nor militias nor medicinal procedures are, today, what they were in the 18th or 19th centuries. Pretending that they do is a form of detachment from reality. Originalism doesn't claim to have its own principle, but rather says it relies upon "what the principle was" at some cherry-picked moment in the distant past. But that argument, central to originalism, is a cop-out. What is really happening, with the Supreme Court as elsewhere whenever unthinking conformists are asked to justify what they do, is that some myth about the past is made up to substitute for serious interpretation. When the Founding Fathers put the Second Amendment in there, they did it to protect the plantation hierarchies in the slave states, and they had no idea that stuff like this was going to happen. And doctors of the 19th century had no idea what abortion would be 150 years afterward.
It can't be a surprise that we get "law" this way, since we get religion this way as well. The most famous examples are the notions of Heaven and Hell, the idea that the Bible implies the Pope, and the Protestant notion that God favors hardworking capitalists.
Recent Supreme Court decisions appear, to me at least, as part of a general trend of unwillingness to face the future and overreliance upon myths and institutions created in forgotten pasts. This is how we get Dark Ages.