Originalism is just the Republican way of saying, “You’re not welcome here”
What the Republicans and the Federalist Society with their “originalism” & “textualist” interpretation of law want you to believe is that we are not in fact a free country. Not even Solomon got to split the baby, for in the end Truth speaks and shows Itself, rendering any desire to have it both ways irrelevant.
The key fact that Republicans and the conservative media want the general populace to forget, or not even realize in the first place, is that, yes, the Constitution is a living, breathing document. The Founders intended it that way for they understood quite well that while 1789 was a swell time for them and their kind, it would soon be 1790, and then before they knew it, well past the year 2000. Times change, tastes change, society changes, views, wants and desires change, morph, evolve. If you want to argue that I’m wrong here then please explain the Constitutional provision for Amendments. If you can make changes to a document, then it’s obviously not written in stone. Amendments are changes. In fact, we are even allowed the ability to add an Amendment to override or nullify a previous Amendment (see the 18th and 21st Amendments). Amendments can even change the provisions and language of the original Constitution (see the 14th and 17th Amendments). Try that with your stone tablet.
What the Founders recognized is that in a society governed by the Will of the People that Will changes over time. It’s a necessity of life that influences wax and wane, therefore altering pressures on people and society at large. Simply, as time moves forward and people’s tastes, desires, needs and access to an ever expanding world change, the law and social order need altering to meet these new challenges and opportunities. Failure to do so can render so much harm upon a nation and its people that recovery is impossible, or exceedingly painful at best (see the former Soviet Union and the American Civil War).
If you look at the Constitution, even somewhat carefully, you’ll notice that it’s at times vague, mostly loose in its constraints, and often general in its specificity. I’d argue, and wager large sums of money, that that was purposeful. Again, building a Nation on the foundation that Government derives its legitimacy from the Will of the People with the aim of longevity of that Nation, you’d expect a constitution that is relatively malleable. And, that is what the Founders gave us. Imperfect? Absolutely. Able to be altered, changed, fixed to address shortcomings? Yep. Without question.
So, I can only conclude that when Conservatives speak of “Originalism” and “Textualism” they’re not speaking of taking into account the issues and problems the law originally intended to address and how it might apply today. No, what they really mean is that they want to hold society frozen in that time when the law was written. To find a way, a loophole, an end run around societal demand and the ever louder growing voice that everyone, Everyone, is worthy of Equality, of equal Representation, Treatment, Protection and Participation. That We the People demand privacy in our homes, our doctor’s offices. We demand, deserve and shall have the Equality that is our birthright and our due.
Conservatives fear this, for the Conservatives of today are not wise, long memoried people who do not necessarily oppose change, but desire a slower pace. No. The Conservatives of today are those who have been corrupted by corrupt religion, by the ghosts of bigotry and racism, by the fear that grips that portion of the population who wrongly believe that changing demographics necessarily means the end of their position, power and privilege.
They could not be more wrong. Just as in nature, a diverse nation of competing, but cordial backgrounds, heritages, religions, cultures and beliefs can only make us stronger, smarter and better able to meet challenges and opportunities of this ever faster changing world. We mustn’t let fear turn America the Leader into America the Forgotten.