What is Originalism and Why is it a Threat to the Nation

What is Originalism and why is it a threat to the nation’s democracy?

By Thomas Coffin

In this essay I will try to explain the legal philosophy known as “Originalism” and why it threatens our Constitutional democracy as we enter our third century under the guidance of the founding documents that gave birth to our Nation. While I attempt to boil Originalism down to its simple essence, I recommend, for those who want a deeper dive, The Evolution of Contemporary Originalist Theory from the Georgetown University Law Center. It is long, lawyerly and somewhat tedious, but by all means, plunge into its deep waters if you have the desire.

My approach is hopefully less esoteric but focused on basic common sense in recognition that culture and society both mature and that we are not frozen in an unchanging time warp of history­–­–and neither were the Founders themselves. Remember that the Great American Experiment in Democracy was an astounding liberal break from the traditional model of kings, queens, and emperors being absolute rulers over their subjects. It was nothing less than a seismic event to construct government on the foundation of “We the People” as their own rulers when our nation broke from Britain and became independent.

When one studies the documents leading up to and culminating in the Constitution, such as the Declaration of Independence, what stands out is the emphasis by the Founders on the values of life, liberty, pursuit of happiness, due process, and the general Welfare of the People themselves. Those values reigned paramount in their thinking and intent and must be factored into any analysis we undertake two centuries later.

The Originalist approach to interpretation of the Constitution involves determining the intent of the Founders when they adopted the Constitution from the meaning of the words in the text and also from their very thought processes (intent) when drafting it. That approach is useful in understanding its context but misleading if shackled by linear restraints or disregard of the core values that motivated them. With that background, allow me to address some significant errors in the extremist conservative camp (which includes, unfortunately, a majority of Justices on the Supreme Court.)

I will start with an egregious example from Justice Alito, who wrote in his decision overturning Roe v Wade that his search of history revealed no precedent holding that women had any recognized rights to the privacy or autonomy in their own bodies. 

We don’t know how hard he looked, but isn’t the lack of precedent cited by Justice Alito due to the misogynist culture of past eras and cultures? And did our Constitution not bestow the same rights to women as men? I have often wondered if it should even have been necessary to pass the 19th Amendment to give women the right to vote? After the Civil War and Emancipation, should it have been necessary to pass the 15th Amendment giving African American (men) the right to vote. Even more to the point, should we search for evidence of the Founders’ views back in 1776 to answer these questions–­–and be bound by their bias and prejudices?  

Another issue that is devastating our nation today at the terrible cost of innocent lives, including our children and posterity, is the scourge of gun violence. This is partly fueled by a deadly contortion of originalism, one which elevates guns over lives, notwithstanding the Founders emphasis on life, liberty, and happiness.

Thus, the proponents of unfettered gun rights not only ignore the ignoble history of the Second Amendment (a compromise to slave holding states who feared slave rebellions and wanted armed militias to quell any) but created a latter day largely fictional narrative to sell it as an absolutist personal right as opposed to being part of a “well regulated militia.”

Worse, this illogical version of Originalism lumps the military weaponry of today with the single shot rifles of centuries ago as if they were the same. The comparison is akin to comparing slingshots to grenades. 

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This is not the only vice of the Originalism school of constitutional precepts; the Supreme Court sends us on Mission Impossible to determine comparable examples from 200 years ago to guide us today. In other words, how can we investigate what the Founders did which will inform us of their mindset so we can dutifully follow their path and not deviate from it? Can anyone imagine using this methodology in the medical field or any other science? Sound government is no different.

Since the firearms of today are light years from those in colonial times, it is a fool’s errand to search for neat similarities from 1776 that can be compared with today’s regular mass shootings.  However, I would bet the farm that it is most likely the Founders who would have banned or strongly regulated the possession of any weaponry that were being used to murder their children in their schoolhouses.  History does tell us that the militias back in the 18th century were not allowed to store their gunpowder near schools, churches, villages, and town meeting halls. 

But to illustrate the folly of Originalism and the nonsense it spawns, I draw the readers to the imaginary journey of Judge Roger Benitez of the District Court of the Southern District of California, who has notoriously lauded AR-15s, likening them to Swiss Army knives in one opinion. More recently, after an appeal, he was tasked by the appellate court to find appropriate comparable weapons used back in the 1700s. This time he compared them to the Bowie knife in upholding his original ruling that people had the individual right to possess such modern military weapons because the colonists had Bowie knives. Innocent people including children are dying in mass shootings from killers armed with assault weapons and that is their fate because 200 years ago folks had knives?

Really, is it even necessary to try to probe the minds of long dead guys from centuries ago to discover what basic common sense has always taught us? More to the point, are we doomed to die violent deaths because some members in our judiciary can invent a narrative in an attempt to peg a weapon to a simile hook from ancient times? 

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Thomas Coffin was the keynote speaker at the Blackberry Pie Society’s Political Party in February, 2020 and at Politics and Pie in October, 2022.  He is a retired federal magistrate judge for the U.S. District Court for the District of Oregon and a former professor at the UO Law School. Thomas retired in 2016 after 24 years on the bench, prior to which he had a career as a federal prosecutor spanning 21 years. He is married with 7 children.  

The Blackberry Pie Society is pleased to include a collection of his essays on our website.  We will post them as they become available.

posted 10.27.2023