How the Supreme Court's "fauxriginalists" are warping the Constitution

Right-wing justices claim they're delving for true meanings beneath the Constitution. It's another Big Lie

By Kirk Swearingen

Contributing Writer

Published July 29, 2022 5:45AM (EDT)

Antonin Scalia, Clarence Thomas and Amy Coney Barrett (Photo illustration by Salon/Getty Images)
Antonin Scalia, Clarence Thomas and Amy Coney Barrett (Photo illustration by Salon/Getty Images)

Maybe you've seen the editorial cartoon by Bruce MacKinnon that depicts Lady Justice being held down and muzzled by well-dressed thugs from the GOP. 

It was drawn in response to Brett Kavanaugh's confirmation hearing, during which Republican senators were working hard to brush away the testimony of Christine Blasey Ford about Kavanaugh's character (or lack thereof), but the instantly classic cartoon can easily stand apart from the specific circumstances of its creation — Lady Justice being assaulted by white male members of the Republican Party.

In a recent interview with Ezra Klein for his podcast, legal scholar Larry Kramer discusses how liberals, after a series of progressive decisions by the Supreme Court under Chief Justice Earl Warren, began to rely too much on the courts and too little on politics, while the right methodically mounted a political counterrevolution, one that included redeployment of the judicial review philosophy known as "originalism."

Constitutional textualists — who formerly claimed to be wedded to the letter of the law — became originalists (or was it the other way around?), delving beneath the text itself for deeper meanings, sometimes in search of the founders' intent and sometimes to ascertain (as they claimed) how the text would have been understood by reasonable people at the time it was written. People, say, like the town blacksmith or the chandler chasing a chicken in the street, who would likely have given little thought to, say, the 14th Amendment's guarantee of equal protection under the law, even in terms of the big issues of their time. 

The truth is that so-called modern originalists or textualists, like the late Justice Antonin Scalia or his intellectual heirs Clarence Thomas and Amy Coney Barrett, also feel free to roam much farther afield than that, seeking justifications for their favored interpretation in English common law and philosophy.

As utilized by the so-called conservatives on the current court, textualism and originalism have become ways to muzzle the voice of the Constitution and keep it from rising from its draped featherbed to address the pressing issues of our own time (when, you know, our beds are often ordered online because we heard about them on a podcast). 

But is the use of the term "originalism" by Scalia and his acolytes itself actually disingenuous?

That's the argument of Praveen Fernandes of the Constitutional Accountability Center, who suggests that a true originalist approach to interpreting the Constitution would not provide conservative results, because the document is, on the whole, remarkably progressive. Instead, Fernandes says, judicial conservatives distorting the meaning of the Constitution by practicing fauxriginalism

[P]rogressives have not been fighting originalism; we have been fighting fauxriginalism.  Fauxriginalism distorts the meaning of the Constitution, often by focusing selectively on some parts of the document, rather than by looking at the text, history, and values of the whole Constitution. Conservatives like to claim that originalism leads them to conservative results, but that's because they too often give a cramped meaning to the Constitution's text and ignore the constitutional history and values that help elucidate what that text means. In truth, conservatives have been a bit like the kid in our grade school class who delivered a book report, but who had only read the first chapters of the book — and didn't even read them that carefully. 

I'm reminded that we used to joke about something we called the "scholarly bluff," where you regurgitate a quote from a recognizable (but perhaps not too recognizable) name to end an argument. We laughed about it because it was so simple — and so effective. Your quote might not actually support your argument, and you might not even have gotten it right. But people tended to back down in the face of such seeming erudition.

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Given that the overtly anti-federalist Federalist Society was itself disingenuously named, it figures that it would get behind a disingenuous form of originalism. In a recent column for the Nation, Elie Mystal writes that the nature of conservative justices began to change after 1992, when fundamentalist Christians were deeply disappointed by the Planned Parenthood of Southern Pennsylvania v. Casey ruling:

The principal difference between conservative justices then and conservative justices now is that the conservatives of 30 years ago were practical. They didn't like abortions, but they understood that no society in history had successfully prevented them. They understood that criminalizing doctors who can perform the procedures safely only leads to unsafe, unregulated procedures. They understood that pregnant people will seek control over their own bodies, whether or not the state or the courts or the church acknowledges their bodily autonomy.

But such practical-minded conservative justices were replaced by shameless political ideologues and, more recently, by religious zealots — indoctrinated, vetted and even prepped for perjury by the Federalist Society.

Mystal likens the extremists on the current court to an invasive species that was purposely introduced into a local ecosystem to address some specific problem, but then ran amok. Now that they have thoroughly devoured Roe v. Wade, they're eager to turn their attention to other prey, such as the separation of church and state. Mystal says affirmative action is next.

The only solution, he writes, is for Democrats to meet the challenge by changing the nature of the court. "After 1992, Republicans engineered a new breed of conservative justice. The rest of us must create a new kind of Supreme Court before it's too late."

On Klein's podcast, Kramer notes a few ways the court could be changed to reduce the effect of the ideology of individual justices. He also asserts that the Constitution is a progressive document, something liberals should be talking up a great deal more in the face of the ever more constrained view from the right. 

As used by so-called conservatives, "textualism" and "originalism" are tools to muzzle the Constitution's true voice, and prevent it from addressing the issues of our time.

How progressive is it really? According to scholar Garry Wills, the Establishment Clause alone was a defining miracle of the U.S. Constitution. As James Madison wrote in his "Memorial and Remonstrance" statement on church and state, disestablishment both protected the free expression of religion and protected all citizens from the use of "Religion as an engine of Civil policy." In a letter to Madison, Thomas Jefferson argued that as the earth belongs to the living, any constitution (not just ours) was a living document, something that needed to be updated frequently as society evolved. 

As for the ideological and religious warriors on the current court (who would make Madison shudder), do yourself a favor and listen to the entire podcast. Two quotes from Kramer stood out for me: "If the founding generation had been originalists, we wouldn't be here," and "The only way you can be an originalist is to be a really, really bad historian."

Unless you believe, that is, that the Constitution is indeed a progressive document and that a truly originalist interpretation demands an expansive view of the founding principles of the framework. As Kramer says, conservatives should never have been allowed to occupy the Constitution and claim it as their totem, the same way they have done for so long with the flag and the concept of patriotism. Supporters of the ongoing Big Lie about the 2020 election and the Jan. 6 insurrection cannot claim patriotism; those who are fine with the Confederate flag being paraded through the Capitol cannot claim allegiance to our nation's actual flag. 

It's all been an endless con, since the days of Ronald Reagan, in service to giving more to the wealthy and big corporations while dividing the citizens from one another, mostly over culture-war issues the powerful don't much care about. (Americans used to be proud to mind their own business.) 

Now the idea is to "flood the zone" with nonsense in order to keep the public from noticing our nation's astonishing levels of income inequality, to dumb children down further, to install permanent minority rule and to shut down the American experiment once and for all.

As both Mystal and Kramer note, we need to work toward a new kind of Supreme Court, one less dominated by political ideology and religious dogma. That won't be easy, but if we don't, MacKinnon's tragic vision of Lady Liberty will be all too accurate — with the dire human costs afflicting many generations to come. 

By Kirk Swearingen

Kirk Swearingen is a poet and independent journalist. He is a graduate of the Missouri School of Journalism, and his work has appeared in Delmar, MARGIE, Bloom, the American Journal of Poetry, Riverfront Times, Medium and Salon.

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Amy Coney Barrett Antonin Scalia Clarence Thomas Commentary Constitutional Law Originalism Supreme Court