Conflating ‘Originalist’ with ‘Conservative’ is a Deliberate Act of Deception

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July 9, 2022

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Immediately after the recent SCOTUS rulings on abortion and the EPA, many voices from the Left immediately labeled the justices “extremist,” undemocratic, and dangerous. They claimed the SCOTUS made a “substantially conservative” turn, because in addition to “originalist” Justice Clarence Thomas, Donald Trump’s three appointees also adhered to the same philosophy of interpretation. Chuck Schumer fumed:

This MAGA, repressive, extremist Supreme Court is intent on setting America back decades, if not centuries.… to a time when robbers [sic] barons and corporate elites have complete power and average citizens have no say.

Kamala Harris accused the Court of telling women what to do with their own bodies. Elizabeth Warren, presumably representing her tribe’s privileged position at Harvard, tweeted that the SCOTUS decided that “it’s more important to protect guns than to protect women.” Writer Steve Brodner stated, “robed extremists” made a “deadly decision” to “sacrifice women.” AOC, not to be outdone on inflammatory rhetoric, wrote that with these SCOTUS rulings, “We are witnessing a judicial coup in process,” – and so on.

In fact, nothing could be less extremist or more democratic than these SCOTUS rulings. There is even an important equivocation, based on a misunderstanding of the meaning of the word “originalist,” in the accusation that the current SCOTUS is a “conservative” court. Some of the accusations against the court are downright Orwellian doublespeak – language used in a way which distorts its true meaning, specifically the opposite. Finally, the SCOTUS has not told anyone what to do with their own bodies. It did not rule that the average citizen has “no say” in the course of their own lives – it has done the precise opposite. But, as usual, the Left retreats to silly hyperbole about robber barons, corporate elites and coups, that is, boogeymen.

What the SCOTUS has actually done is clarify that federal and state legislatures are the only law-making bodies, and should be treated as such. SCOTUS has limited its own power! Since legislatures are responsible to the voters in these things called “elections,” the Court has thereby made clear that it is up to the voters to elect representatives to decide upon these controversial issues. The SCOTUS’ message is, ‘We, SCOTUS, do not have any power whatsoever on matters not laid out in the Constitution. All the power resides with the people in the democratic process.’ Somehow, the corrupted Orwellian left/liberal mind can see a robust affirmation of democracy as destroying it.

Unfortunately, elections are coming up in November and, given its tremendous unpopularity due to Biden’s dreadful anti-American policies, the Left settled upon the storyline that the SCOTUS is an extremist court that has removed decisions from the American people – but in fact what it actually did was precisely the opposite. The hysterical talk of helping robber barons, sacrificing women, destroying the environment, coups in process and so on is nothing more than cynical electioneering talk. By employing this strategy, the Left shows that it sees the American people as children that can be scared into doing its bidding. We hear distressing fairy tales of evil Republican SCOTUS boogeyman under the bed who want to gobble up rights…. when, in fact, these SCOTUS decisions reaffirm trust in Americans themselves to address these issues in the appropriate venue.

The leftist portrait of the “originalist” justices – Thomas, Gorsuch, Kavanaugh, and Barrett – as extremist “far right” conservatives is also misleading. The word “conservative” has many meanings. In its most innocuous sense, a conservative is just someone who believes in conserving tradition. However, when leftists talk of “far right” or “extremist” conservatives, they are attempting to conjure images of the worst parts of our history like the substantial evils of slavery, white supremacy, male-only voting, and the like. Fortunately, virtually no one in the country supports those wicked practices – certainly not Thomas (a Black man), Gorsuch, Kavanaugh, or Barrett (a woman). For, in fact, there is an important sense in which an “originalist” jurist is neutral with respect to all such substantive views, either on the Left or the Right. That is the whole point of “originalism.” An “originalist” understands that it is not their job to legislate from the bench on issues like abortion or same-sex marriage. Rather, an “originalist” will refer to the original meaning of words in the Constitution – to defend a leftist’s right to free speech just as it will do the same to defend a conservative’s right to free speech, to defend a leftist’s right to own a firearm just as it defends a conservative’s right to own a firearm, and so on. When an issue such as abortion is involved, an “originalist” acknowledges the rightful process is to return the issue to the legislatures, that is, to the American people in the democratic process. As law professor Ilan Wurman puts it:

Isn’t originalism just a rationalization for conservative results? The short answer is “no.” Originalists take the bitter with the sweet. [They] believe.… that controversial political and moral questions.… [like] abortion or same-sex marriage.… should be decided by the democratic, legislative process.… [which] can lead to progressive, libertarian or conservative outcomes.

Thus, there is nothing specifically “conservative” about “originalist” decisions. An originalist’s heart may well be conservative but they decide based on the Constitution, not their heart. If a “conservative” law issues from originalist rulings it is because the voters have made that decision. If a “liberal” law issues from originalist rulings it is because the voters have voted liberal. An originalist takes the bitter with the sweet, the liberal with the conservative.

If “liberals” are really confident, as they repeat ad nauseam, that the American people really want very “liberal” abortion laws, what are they worried about? The voters well deliver liberal laws. Perhaps it is because liberals know that the polls about abortion they cite, in an attempt to manipulate the voters, are inaccurate.

The Constitution was constructed to protect both sides of the political aisle equally. If leftists object to “originalism,” it is because they have come to feel entitled to special privileges from activist liberal justices that settle substantive political issues like abortion and “same-sex” marriage as the Left wishes, thereby enabling them to circumvent the democratic processes and impose their own moral (or sometimes immoral) positions on the country. Schumer, Warren, AOC, and others are angry because they lost the unfair advantage that they have enjoyed for so long from liberal activist justices. What they are really angry about is that the SCOTUS has signalled that it is going to do its job properly and return to its designated role as interpreter of the Constitution as it was originally written.