Stupid Originalist Tricks

Why should liberals expend energy bashing conservatives – when conservatives do the job so much better? This week, the Field Guide takes aim at “originalism,” to again demonstrate that conservatism, at its roots, has no principles. It is not a political philosophy – it’s just a bunch of crap packed together by historical accident, and held together through a firm commitment to not thinking it to death.

Originalism, nominally, holds that the US Constitution should be interpreted the way the people who wrote it and-or ratified it would have interpreted it. Take the 14th amendment’s birthright citizenship clause:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

Hard to imagine how anyone who ever complained about judicial activism could suggest that the 14th amendment means anything but what it says: if you are born in the US, you are a US citizen. But it hasnt prevented conservatives from claiming that the US-born children of illegal aliens are exempt from the 14th amendment’s plain meaning.

Their argument seizes on the “subject to the jurisdiction thereof” requirement, somehow asserting that illegal aliens are not subject to US jurisdiction. Anyone who knows a little bit about law should know what the consequence of that would be. It would mean that illegal aliens could not be tried for any crime, nor compelled to appear for civil disputes either. They would have the same immunity as do diplomats (the actual, intended targets of the jurisdiction requirement), who can be expelled from the country, but cannot be brought to court to answer for their misdeeds. If that sounds crazy, wait – there’s more.

At the time of the 14th amendment’s ratification, the US had never had an illegal alien. The borders were open, and had been since colonial times. Anyone could emigrate to the US – and, under the common law, their children automatically became citizens. How could the writers and ratifiers of the 14th amendment possibly have intended an exception for a class of people that didnt exist!?

Moving on to the next stupid originalist trick: If you saw the GOP debate, you may have caught Marco Rubio advancing the loopiest anti-abortion argument to date. Per Rubio, the 5th amendment’s due process clause,

No person shall… be deprived of life, liberty, or property, without due process of law….

applies to fetuses and embryos. And so we dont need state or federal anti-abortion statutes – abortion is already illegal under the US Constitution – we just need five justices to say so.

We happen to know that Rubio is an originalist, because after the Supreme Court’s decision in Obergefell, (legalizing gay marriage nationwide), Rubio said,

It must be a priority of the next president to nominate judges and justices committed to applying the Constitution as written and originally understood.

So did the 5th amendment, “as written and originally understood”, really include fetuses and embryos as “persons” – and outlaw abortion from way back in 1791?

To answer that question, it helps to know that abortion was legal in all 13 states at the time the Bill of Rights was adopted – as it had been in all 13 colonies previously – as it had been for several hundred years under the common law. And so Rubio will have to find some other pretext for his political beliefs. Or he can simply abandon originalism, and interpret the Constitution according to some other style. We at the Field Guide are betting that he does neither – self-contradiction, after-all, is the conservative way.

 

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