What Constitutional Originalists Get Wrong About American Democracy
Bill Blum, legal commentator at Blum’s Law, says that legal philosophies on the Supreme Court can be separated into two camps: Originalists, who approach the Constitution as "fixed and very concrete," and Dynamic Constitutionalists, who believe our understanding of the document "deepens over time."
As a good example of the latter, Blum cites Justice Anthony Kennedy’s decision in the 2015 same-sex marriage case, Obergefell v. Hodges.
"Justice Kennedy says, 'the nature of justice is that we may not always see it in our own times. The generations that wrote and ratified the bill of rights in the 14th amendment did not presume to know the extent of freedom in all of its dimensions. And so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.'"
Blum says that a strictly originalist Supreme Court would be required to overturn a number of landmark decisions associated with the realization of the freedoms enumerated in the Constitution and other founding documents.
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"If you were a true originalist, you would probably have to overturn Brown v. Board of Education, because Plessy was the decision that Brown invalidated and Plessy was an originalist decision. Dred Scott as well. You have to be careful because rigid originalism leads you into a cul-de-sac from which there is no escape," Blum says.
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