Even as the first black woman to serve on the Supreme Court was sworn in on Thursday, the newly empowered, right-wing and originalist court’s slate of majority decisions this term made it clearer than ever that the court is driven by the recourse to the white supremacist patriarchy of the framers of the Constitution.
With 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 signaled his desire to “make America great again” by using 18th and 19th century standards to solve modern problems. Specifically, these decisions lean heavily on a judicial philosophy called originalism, which holds that in interpreting the Constitution, we must hold the intent – that is, the thought processes of the framers – above all else. .
The originalist judges express the belief that we should interpret the US Constitution according to the legal views of 18th century white men.
In other words, in these decisions, originalist judges express the belief that we should interpret the American Constitution according to the legal opinions of 18th century white men – the same white men who denied the right to vote or property to anyone except to themselves.
But I would argue that the reason such a judicial view is not only possible, but also prevalent, among our highest legal minds is because so few of us white men (and increasingly, white women) have been willing, over the past few centuries, to challenge our legacy of historic American privilege.
Originalism is patriarchal white supremacy.
The debates surrounding the drafting of the Constitution reveal difficult compromises between wealthy white men balancing the interests of the states with the interests of the union. Delegates from my home state of South Carolina, for example, used tortured and selfish reasoning to justify their continued importation of slaves from Africa.
“If slavery is wrong, it is justified by the example of the whole world,” said Charles Pinckney, Revolutionary War hero and member of the South Carolina delegation to the convention – and slave owner – according to a report in the New York Times. “An attempt to suppress the law, as proposed, will produce serious objections to the Constitution.”
The drafters eventually reached a compromise where the importation of enslaved people would face a sunset clause, but would not be immediately banned. And so, the domestic trade of enslaved people – and the political empowerment of those who enslaved them – were enshrined in the nation’s founding document.
My family traced a genealogical connection to Pinckney and taught me to be proud to be descended from someone at the Constitutional Convention. But when I see his words, I can only feel shame and revulsion.
Originalists feel no such shame. When the 13th Amendment abolished slavery, we no longer had to heed what the framers said on the matter, originalists argue, because the amendment superseded the original intent.
But it’s impossible to separate a man like Pinckney’s thoughts on slavery from the rest of his worldview – especially someone who grew up in a place like Charleston, a former slave trade heartland of the nation. , and on a plantation surrounded by people over whom his family demanded absolute control in order to extract absolute value from it.
But it’s impossible to separate a man like Pinckney’s thoughts on slavery from the rest of his worldview.
Even if we accept that the Constitution was eventually changed to undo Pinckney’s monstrous beliefs about who was a human, it is hard to trust any argument that rests on the intent of his contemporaries, none of whom could have imagined Judge Ketanji Brown Jackson.
Although Judge Clarence Thomas is also descended from those enslaved by the Founders, he has long been one of the court’s staunchest originals – although now, after President Donald Trump’s appointments, he has a lot more competition.
In the court’s ruling on Dobbs, the majority pointed to its original bias, saying a woman’s right to an abortion was unprotected because it was not “deeply rooted 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 the time. This does not mean that there was no abortion.
But in his concordance, Thomas took this reasoning further, pointing to the need to “correct” other precedents that deviated from the drafters’ intent. Indeed, Thomas argues that rights that were “unenumerated” in the Constitution are not necessarily legitimate, specifically targeting the principle of substantial due process, which was the basis of rulings protecting same-sex marriage and contraception.
Gun restrictions, on the other hand, and the racism that informs them, predate the United States of America. South Carolina’s so-called slave codes, which were exported to most other so-called slave states after 1740, not only prohibited enslaved Africans from carrying guns, but also required white men to carry a weapon. in certain situations in public, in order to be ready to quell any slave insurrection. (By the way, slaves made up the majority of the population in areas of the Low Countries near Charleston, including the Georgia Sea Islands where Clarence Thomas was raised just across the border.) Centuries later, Ronald Reagan and the National Rifle Association were only too happy. to support gun restrictions as they hoped to disarm the Black Panther Party.
In our moment of fracture, we might be able to save the Constitution. But only if we are able to separate the document from the poisonous ideas of many who drafted it. Falling back on an originalist interpretation will do the opposite.
Unfortunately, originalism is far from the court’s only problem, as its decision in West Virginia v. Environmental Protection Agency. As Judge Elena Kagan pointed out in her dissent, the majority decision in West Virginia v. EPA seems to abandon the textualist basis of the originalist doctrine adopted in Dobbs.
“The current Court is textualist only when it suits it,” Kagan wrote. “Where this method would frustrate larger goals, special canons like the ‘Major Issues Doctrine’ magically appear as textless cards.”
Notably, Thomas voted in the majority here.
The purpose of environmental regulation is to prevent those with power from harming those without. The court’s decision, which ties in with mainstream conservative thinking, once again privileges the so-called freedoms of white patriarchy over everything else, with particular disregard for regulations 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 it could not continue to import, torture, rape and brutalize other human beings, he was articulating the same philosophy espoused by those who seek to destroy the Administrative state.
The attempt to return to a white supremacist patriarchal state links the will to dismantle the administrative state to the constitutional originality of the new majority of the Court. And both, like white supremacy and patriarchy, dress a naked power grab in the rhetoric of principle and legal logic.
Originalism is not simply a neutral judicial philosophy. When weaponized, as it has been by this Supreme Court, it turns into a political tactic and a serious way to embrace a white supremacist and patriarchal narrowing of the political rights exercised by many Americans.