Twenty years ago, when my kids were little, and we went on long drives, my wife and I would play an audiotape of the Amelia Bedelia stories, by Peggy Parish, to keep them occupied. Amelia Bedelia is a housekeeper who goes to work for a rich couple. They give her instructions—dust the furniture, draw the drapes, put out the lights—that Amelia, being extremely literal-minded, interprets exactly the wrong way. She pours dust on the furniture; draws a picture of the drapes; puts all the lights outside. The couple comes home to the chaos, and resolves to fire poor Amelia—until they taste a pie that she has made. It is so delicious that they can’t bear to let her go.
Our kids loved the wordplay and, of course, the foolish adults. They got the joke. After several hundred listenings, however, it dawned on me: Amelia Bedelia, as others have noted, knows precisely what she is doing. She’s an anarchist, an agent of chaos, and is intentionally punishing the rich couple for some conduct deep in the untold backstory of the series. No reasonable person can use words that literally, with no awareness of how words can have multiple meanings. Even children know that the phrase “catch the school bus” doesn’t refer to grabbing a large yellow vehicle flying through the air. Amelia Bedelia, a functioning adult who manages to get to work each day, surely also understands the figurative use of language, and is simply pretending not to in order to achieve her own nefarious ends.
As a then-recent graduate of law school, I soon had another realization: this narrow focus on a certain understanding of words, to the exclusion of all others, is a close cousin to originalism, a distinctly conservative strain of thinking in constitutional law that was championed and popularized by the late Supreme Court Justice Antonin Scalia. Originalists argue that their thinking is uniquely rigorous and coherent. They believe that it is possible, even imperative, to identify the proper meaning and interpretation of the Constitution by adhering strictly to the text and to the intentions of the men who wrote it. Originalists scoff at the notion of a “living Constitution,” a document whose meaning has changed and expanded with time and evolving circumstances. Only softheaded liberals, they say, believe that due process encompasses foggy notions and words unmentioned in the Constitution—words such as “privacy.” If something isn’t specifically articulated in the Constitution, any attempt to find it there is entirely speculative—or, as Justice Scalia put it, “pure applesauce.”
By the nineteen-eighties, originalism had become the dominant legal ideology of the right. It allowed conservative legal scholars and judges to claim a higher ground of objectivity and neutrality: they were simply applying what the Framers intended when they wrote the document. Conversely, it enabled them to label federal judges who sought to expand rights or powers of the Constitution as “activist judges”—effectively, as unelected legislators who would bend the language of the Constitution, in order to reshape society to fit a vision of liberal utopia.
But the recently leaked draft opinion in Dobbs v. Jackson Women’s Health Organization, written by Supreme Court Justice Samuel Alito, and an earlier federal decision by Judge Kathryn Kimball Mizelle, in Florida, outlawing the federal mask mandate on airplanes, reveal the dishonesty inherent in the originalism idea. In fact, it appears that, much the way that many Republicans are dropping any pretense of civil decorum or anti-bigotry in order to appeal to radical elements of the base, many conservative judges are leaning into the bare-knuckled, results-oriented jurisprudence to take them in the direction that they want to go: backward.
Justice Alito, in his draft opinion, argues that, because he can find no reference to abortion in the Constitution, and because there was no widely established right to abortion in 1868, at the time of ratification of the Fourteenth Amendment (which contains the due-process clause that Roe v. Wade holds includes the right to privacy), there is no basis for finding that the Constitution protects any such right. That’s not what “due process” means, Alito maintains, because it’s not reflected in the historical record he selectively cites. Like Amelia Bedelia, he latches onto a specific, fixed meaning within the Constitution, and refuses to consider any broader possible meaning. And while, strictly speaking, Amelia Bedelia may be more of a textualist (relying solely on the words themselves) than an originalist (seeking to understand what the words meant at the time that they were used), the utter disregard for destructive outcomes is the same.
What’s clear now is that the destruction is the intent. Originalism is just a clever trick of perspective. If you narrow your vision to look only for specific words that people used when the Constitution was drafted, you will always be engaged in a process of halting progress beyond that moment in time. Was there gay marriage in 1868? No? Well then, due process obviously doesn’t protect any right to marriage equality. You freeze recognition of rights as of the nineteenth century, while claiming to be neutrally applying interpretive principles to reach that conclusion. Of course, in order to achieve this result, you absolutely may not widen the perspective to consider the ultimate goals inherent in the Constitution. The question of whether the Framers (or the Constitution itself) contemplated an idea of securing the right to bodily autonomy is prohibited. Don’t ask whether it makes sense to apply eighteenth-century notions of personhood to a twenty-first-century country. Ask only whether the Constitution mentions “abortion.”
Alito, of course, already knew the answer to that—we all did. Both the question, and the analysis, are disingenuous. His ninety-plus-page opinion, citing some ancient (and bizarre) sources, merely attempts to obscure it. That is the point of originalism, and it explains why so many right-wing lawyers and judges cling to it. The solutions to complex issues are rendered simple, predetermined. In other words, originalism is not neutral and never has been. It is a political tool designed to halt progress.
Originalists argue that it’s not their fault that the drafters may have been slaveholders, or uniformly male, or white, or without any knowledge of contemporary technology or a more inclusive notion of humanity. Them’s the breaks; mere accidents of history. Or they argue that they are only interpreting the law as written. If you want to change the law, they say, that’s the role of the legislature, not the judiciary. But that, too, is a profoundly dishonest response. To say that is to say that the Dred Scott case was correctly decided when it was written, in 1857. At that time, as Justice Roger Taney wrote, Black people “had no rights which the White man was bound to respect.” That holding is now universally regarded as one of the most shameful in Supreme Court history. It is an object lesson in the misapplication of legal principles to profoundly inhuman ends. Black Americans should have been entitled to full citizenship, and to all the protections of the Constitution, from the moment the country was founded. Our legal system, however, didn’t recognize their rights, and that failure is the great crime of this country’s founding. The logic of originalism, as expressed in Alito’s draft opinion, would mean that Black Americans should not have been entitled to citizenship, or to their full humanity, until the civil-rights amendments said so. To say that the law is correct because it’s what the law says, is, at best, circular, and, in many instances, monstrous.