Uncivil Discourse

Because civility is overrated.

Wednesday, June 29, 2005

Things Originalism Wouldn't Allow

In light of Scalia and Thomas' fun with originalism, let's see some things originalism wouldn't have let happen:

1) School desegregation. Original meaning sure as fuck doesn't tell you that Brown v. Board of Education was an originalist decision.
2) Religious freedom given to Hindus, Muslims, Mormons, Jews, and Buddhists, among others. After all, as Justice Story wrote, the Establishment Clause's original purpose "was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects..." How could it have been intended or meant to give religious freedom to such groups which weren't really represented in the country, or in some cases, that didn't exist yet?
3) Ken Starr's grand jury: grand juries were not intended to be arms of the prosecution.
4) The right to a lawyer. The Sixth Amendment was only intended to stop people from being railroaded if they could afford a lawyer, since English common law forbade a defendant from having a lawyer unless there was some abstract legal question at stake.
5) Federal Defense of Marriage Act. It's not even an issue of equal protection here; think enumerated powers, beyatch.
6) Bush v. Gore. The Fourteenth Amendment applied to voting? Why, that would make the Radical Republicans die of heart attacks. That's what the Fifteenth was for.

Anyone got any others?