Originalism and “Might Makes Right”
“Slavery was legal; it was also wrong, so wrong as to justify resistance to the law.” Many people find this sentence both comprehensible and true. They see law as a product of its society; sometimes that “positive” law has to be resisted, because societies can go quite badly wrong. But to some others, things are more complicated. They see law as a branch of political morality, and though it isn’t always perfect (political morality being distinct from morality simpliciter), there are limits to how bad it can be. Either slavery can’t have been legal, or it can’t have been all that wrong.
Or so one might think from reading an editorial at Ius & Iustitium, claiming that “The End of Originalism” is nigh. On the editorial’s account, originalism can’t survive a post-Roe world governed by “a patchwork quilt of state laws,” where the lives of unborn children hang on arbitrary state lines. Absent some new decision that the Fourteenth Amendment guarantees equal protection to persons still unborn, originalism (the editorial argues) will be exposed as equally arbitrary. Because it holds “that the text alone is law,” or else preserves whatever the law was at some prior time, “[o]riginalism is incompatible with any morality beyond ‘might makes right.'”
The editorial’s first problem is anachronism. However originalism might fare in a post-Roe world, we should recognize that most of its history was in a pre–Roe world, when states had different laws about abortion (and about slavery, and about which churches to establish or disestablish). Whatever one makes of the Fourteenth Amendment, the original U.S. Constitution, the one without any amendments in it, said nothing about guaranteeing equal protection to “any person”; such protection as there was came from state laws, or perhaps (to the Barron contrarians) from the privileges and immunities of citizens referenced in Article
Article from Latest – Reason.com