Opinion: Originalism reigns at this Supreme Court, and that’s a good thing



The three words that best describe Supreme Court decisions of this term are text, history, and tradition. If that’s one word too many, try this: originalism reigns! And this is a good thing.

The court considered several important constitutional cases during this term. The split in most of these cases was 6 to 3, with the “conservative” judges in the majority and the “liberal” judges dissenting.

In the larger case, Dobbs v. Jackson Women’s Health Organization, a majority of five justices ruled that the Constitution had no right to obtain an abortion. This overruled Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).

Nearly 50 years ago, Justice Byron White, in his Roe dissent, wrote that the erroneous decision represented an “exercise of crude judicial power.” Similarly, John Hart Ely, a prominent academic who supported abortion rights, said Roe was “not constitutional law and made almost no sense of the obligation to try to be.”

These views were reflected in Dobbs’ majority opinion, written by Judge Samuel Alito. He noted that the right to abortion does not appear in the text of the Constitution, nor in the history or traditions of our nation. Indeed, virtually every state banned abortion when the Constitution and the 14th Amendment were ratified.

The court also ruled on a major Second Amendment case, New York State Rifle & Pistol Association v. Brun. Judge Clarence Thomas wrote the majority opinion 6-3, striking down a New York law requiring law-abiding citizens who have passed a background check to demonstrate a “special need” – beyond a general desire to defend themselves – before being allowed to carry a gun outside the home.

The court said such a restriction was not supported by – drum roll please – neither the text of the amendment nor the historical traditions of the nation. The court further said the amendment was the “product of a balancing of interests by the people” and that it was improper for a court to engage in a “judge-authorizing balancing of interests inquiry” once the amendment’s protections had been properly invoked. .

In a major religious freedom case, Kennedy v. Bremerton School District Judge Neil Gorsuch wrote the six-judge majority opinion ruling that a school violated a high school football coach’s free exercise and freedom of speech when it fired him for offered silence. post-match prayer in midfield. The court relied on – you guessed it – “historical practices” and the “original meaning” of the First Amendment text to reach its decision.

The court also finally said that the court’s much-criticized three-part test for analyzing establishment clause cases, enacted in Lemon v. Kurtzman (1971) – who Judge Antonin Scalia once described as “a ghoul in a late-night horror movie sits in his grave and drags himself away, having been killed and repeatedly buried – was indeed dead.

The court has also sided with religious followers in other prominent religious liberty and free speech cases, including Carson v. Makin, Shurtleff v. City of Boston, and Ramirez v. Collier. Senator Ted Cruz also won a significant victory against the Federal Election Commission in which the court, again by a 6-3 vote, ruled that an FEC rule violated the First Amendment rights of candidates wishing to make personal loans to their own campaigns to get involved. in pure political discourse.

And in NFIB v. OSHA, West Virginia v. EPA and Alabama Association of Realtors v. HHS, the court (again via 6-3 votes) ruled that separation of powers principles require that Congress speak clearly before an administrative agency made up of irresponsible bureaucrats can wield nearly unlimited power over corporate decisions. great “economic and political importance”.

In his dissenting opinion in the infamous Dred Scott v. Sandford, Justice Benjamin Curtis said: “When a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of statutes, is abandoned and the theoretical opinions of individuals are allowed to control its meaning, we do not have no more Constitution; we are under the government of individual men who, for the time being, have the power to declare what the Constitution is according to their views of what it ought to mean. »

During this momentous term, the court made great strides toward faithfully interpreting the Constitution and restoring the rights of all Americans to govern themselves – except those few individual rights that are defined in our Constitution or firmly rooted in the historic traditions of our nation – to debate, persuade and decide contentious issues directly or through their elected representatives.

In terms of interpreting and upholding the Constitution, I give the court an “A-plus.”

John G. Malcolm is vice president of the Heritage Foundation and director of the think tank Meese Center for Legal and Judicial Studies. He wrote this for InsideSources.com.

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