Even as the first black woman was sworn into the Supreme Court on Thursday, the series of rulings from the newly authorized, right-wing and original court majority this term has made it clearer than ever that the court is motivated by reliance on the white supremacist patriarchy of the drafters of the Constitution.
Featuring Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade last week, and New York State Rifle & Pistol Association v. Bruen, the court has expressed its desire to “make America great again” using 18th- and 19th-century standards to address modern problems. In particular, these statements are highly dependent on a philosophy of law called originalismarguing that when interpreting the Constitution we must put intent — that is, the thought processes of its framers — above all else.
Originalist judges believe that we should interpret the United States Constitution according to the legal views of 18th-century white men.
In other words, in those decisions original judges express the belief that we must interpret the U.S. Constitution according to the legal views of 18th-century white men—the same white men who denied the right to vote or own property to anyone but themselves. .
But I would argue that the reason that such a judicial view is not only possible, but is predominant among our top lawyers, is because so few of us white men (and increasingly white women) in recent centuries have been willing to questioning our legacy of historic American privilege.
Originalism is patriarchal white supremacy.
The debates over the drafting of the Constitution reveal fraught compromises between wealthy white men who weigh the interests of the states against the interests of the union. The delegates from my home state of South Carolina, for example, used a tortured, selfish reason to justify their continued importation of enslaved people from Africa.
“If Slavery is wrong, it is justified by the example of the whole world,” said Charles Pinckney, a Revolutionary War hero and member of South Carolina’s delegation to the convention — and a slave owner — by way of a statement. New York Times account† “An attempt to take away the right, as proposed, will raise serious objections to the Constitution.”
The framers in the end reaches a compromise where the entry of enslaved people would face a sunset clause but would not be banned immediately. And so the domestic trade in enslaved people—and the political power of those who enslaved them—was enshrined in the nation’s founding document.
My family traced a genealogical connection to Pinckney and taught me to be proud that I was descended from someone at the Constitutional Convention. But when I see his words, I feel nothing but shame and disgust.
Originalists don’t feel so embarrassed. When the 13th Amendment abolished slavery, we no longer had to think about what the drafters said on the matter, the originals claim, because the amendment replaced the original intent.
But it’s impossible to separate a man like Pinckney’s thoughts on slavery from the rest of his worldview—especially one who grew up in a place like Charleston, once the heart of the country’s slave trade, and on a plantation surrounded by people over whom his family demanded absolute control in order to extract absolute value.
But it’s impossible to separate a man like Pinckney’s thoughts on slavery from the rest of his worldview.
Even if we allow the Constitution to be eventually amended to undo Pinckney’s monstrous beliefs about who a human was, it is difficult to trust any argument based on the intentions of his or his contemporaries, none of whom Judge Ketanji Brown Jackson could have suggested.
Although Judge Clarence Thomas is also descended from those enslaved by the founders, he has long been one of the… the most steadfast of the court originalists – although now, after the appointees of then-President Donald Trump, he has a lot more competition.
In the court ruling on Dobbs, the majority emphasized its originality, saying that a woman’s right to abortion was not protected because it was not “deeply ingrained in the history and tradition of this nation”. Of course, there were no women in the Constitutional Convention or in other positions of power at that time. not that means there were no abortions†
But in his concordance, Thomas took this line of reasoning further, signaling the need to “correct” another precedent that strayed from the drafters’ intent. In fact, Thomas argues that rights that were “unmentioned” in the Constitution are not necessarily legitimate, especially centered on the principle of a substantive due process, which has been a foundation of decisions protecting same-sex marriage and contraception.
Gun restrictions, meanwhile, and the racism that informs them predate the United States of America. The so-called South Carolina slave codes, which were exported to most other so-called slave states after 1740, not only prohibited enslaved Africans from carrying weapons, but also required white men to carry guns in public in some situations, to be ready to suppress any revolt of enslaved people. (By the way, slaves) made up a majority of the population in the lowlands near Charleston, including the Georgia Sea Islands where Clarence Thomas was raised just over the border.) Centuries later, Ronald Reagan and the National Rifle Association were all too happy to support gun restrictions when they hoped to disarm the Black Panther Party.
In our broken moment we may be able to save the Constitution. But only if we can separate the document from the poisonous ideas of many who drafted it. Failing to make an original interpretation will do the opposite.
Unfortunately, originality is far from the court’s only problem, because it decision in West Virginia v. Environmental Protection Agency made clear. As Judge Elena Kagan noted in her dissent, the majority decision in West Virginia v. EPA appears to leave the textual basis of the original doctrine espoused in Dobbs.
“The current court is textual only when it suits us,” Kagan wrote. “If that method were to frustrate broader goals, special canons like the ‘main questions doctrine’ magically appear as cards that fall outside the text.”
Thomas in particular voted in the majority here.
The purpose of environmental regulation is to prevent those in power from harming others. The court’s decision, which aligns with mainstream conservative thinking, once again privileges the so-called freedoms of white patriarchy above all else, with a particular disregard for rules designed to protect marginalized communities or, in this case, the planet. .
When Charles Pinckney argued that South Carolina would not join the new nation if they could not continue to import, torture, rape and mistreat other people, he expressed the same philosophy held by those who want to destroy the governmental state.
The attempt to return to a white supremacist patriarchal state links the desire to dismantle the administrative state with the constitutional originality of the new majority of the court. And both, like white supremacy and patriarchy, disguise a naked grab for power in the rhetoric of principle and legal logic.
Originalism is not just a neutral philosophy of law. When armed, as it has been by this Supreme Court, it is transformed into a political tactic and a serious-sounding way of embracing a white supremacist, patriarchal narrowing of the political rights exercised by many Americans.