Columnist Susan Wozniak: The folly of an originalist Supreme Court

  • Replica of the Constitution of the United States as Signed by Our Founding Fathers Photopa1

Published: 5/26/2022 3:53:41 PM
Modified: 5/26/2022 3:51:43 PM

I am not a lawyer. However, that does not prevent me from understanding the absurdity of the originalist approach to the Constitution.

While I am amazed that 55 men devoted slightly less than four months in the late 18th century to produce a different kind of government, I am clear-eyed about their accomplishment. History reveals they were not in complete agreement, as only 42 appeared at the signing. Three of those present were uneasy about it and refused to sign. However, imagine how rare it is that 55 people, packed into a single room, to agree on everything.

And they were men. Founding Fathers, the name Warren G. Harding created, is too patriarchal. I prefer the Founders. I only know of two off-stage women contributors: Abigail Adams, who was her husband’s confidant, and Mercy Otis Warren, a playwright and polemicist who wrote a history of the American Revolution. It’s a shame they were never in the room.

The lives of these men and women were very different than our lives. They traveled by horseback or carriage. They probably grew most of their food. Without phones and computers, they relied on broadsides and newspapers. Without planes, Thomas Jefferson and John Adams missed the signing of the Constitution, as they were abroad. Even a fax machine would have been helpful.

Education for women was basic. Fortunately, Mrs. Warren’s wealthy family allowed her to sit in the room while a tutor educated her brother. Her learning allowed her to write and publish.

This somewhat Medieval society had no oil fields and no use for oil. Would an originalist — that is, someone who interprets the Constitution in terms of what its drafters originally wrote — prevent the government from legislating issues in regards to the many aspects of producing oil? Should there be no traffic laws, no OSHA? Would an originalist court “liberate” us from laws meant to protect us?

Let’s go back to the dissenters who left without their endorsement because the Constitution did not mention individual rights. Some delegates to the state conventions heard their reasons and adopted them.

Had the 1787 document remained unamended, originalism might make sense. But, the dissenters won the day. Four years later, the Bill of Rights opened the door to the amending of the Constitution. According the National Constitution Center, more than 11,000 amendments have been introduced and 27 have been ratified.

That so much effort has been put into the revision, correction and maintenance of the Constitution eviscerates the very notion of originalism.

In the leaked draft of the opinion that would overturn Roe v. Wade, Supreme Court Justice Samuel Alito offers that the word abortion is not present in the Constitution. We should be aware that technology has a push-pull effect upon law and ethics.

As I pointed out, we do not live as people did in 1787. Many of the subjects found in the Bill of Rights were debated at the Convention. One of the delegates left without signing because he wanted slavery abolished. Congress still discusses many of those issues. Journalists and authors write about the nature and the needs for change. Teachers still lecture on laws and the Bill of Rights remains the basis of thousands of federal regulations.

Should those amendments and federal regulations be abolished as they created jurisdictions absent from the original document? What is that you say? That chaos would result? It certainly would!

Consider that the word woman does not appear in the Constitution, despite Abigail Adams’ request. But women existed. Most of the delegates were married. All had mothers. Surely, many had sisters and aunts. Why wouldn’t they grant rights to those women who were intimate parts of their lives? Why wouldn’t they acknowledge the strengths of women like Abigail Adams who ran the family farm, as women have been doing since the Middle Ages, while her husband was involved in government? Or, Mercy Otis Warren, whose writing was supported by her friends Adams, Washington and Jefferson?

Most adult women today have earned high school diplomas. More women than men are likely to enroll in college and more likely to finish. Thirty-seven percent of lawyers are women, while 38% of doctors are women. That last statistic will change soon, because the percentage of women medical students is now surpassing male students.

The Pew Research Center found that 70% of women and 69% of men support a woman’s right to choose. Given the number of women doctors and lawyers, the fight over the abolition of Roe will be fierce.

Does the American government have legal jurisdiction over abortion? Listening to Lawrence O’Donnell’s extended editorial on the issue, it occurred to me that it might not. To begin, perhaps to ban abortion is to practice medicine without a license. Consider that insurance companies control the practice of medicine by refusing to pay for procedures and prescriptions. To me, that we allowed insurers to check trained medical professionals set a precedent of practicing sans license.

Pundits say that to overturn Roe is to go back in time for half a century and that Alito’s reliance on obscure — to Americans — English jurist Edward Coke, who served during the Tudors and the Stewarts, contradicts Alito’s argument that abortion laws must reflect American law and custom. Relying upon Coke’s feelings about women, abortions and witches, fails to solve America’s dilemma. When “Saturday Night Live” satirized Coke and his old notions, the show demonstrated how extreme they are.

However, this matter is no joke.

When Alito summoned Edward Coke for support, he relied on what Professor Jason Stanley, in his book “How Fascism Works,” calls “the mythic past.” The past that Alito should rely upon is how George Mason’s and Elbridge Gerry’s understanding of how the quest for personal liberty led to the Bill of Rights, a viable and essential part of the Constitution.

Susan has been a case worker, a college professor and journalist. She is a mother and grandmother.

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