As we’ve seen recently, the American right has found in the framers an extraordinarily effective tool with which they can roll back social progress and undermine our democracy. It may have found its most ridiculous manifestation in the tea party movement that emerged when Barack Obama was president, when people started prancing around in tricorn hats and every Republican was supposed to have a favorite Founder. But today it has gone from an affectation to a weapon, and a brutally effective one.
We saw it in the recent Supreme Court decisions that supercharged the legal philosophy of “originalism” on abortion and guns. Reproductive rights, said Justice Samuel A. Alito Jr., are neither found in the explicit words of the Constitution nor “deeply rooted in the Nation’s history and traditions,” so they don’t exist as rights. As for states that want to regulate guns, said Justice Clarence Thomas, only regulations that have “a distinctly similar historical regulation” from the 18th century will be allowed. The America of 1789 becomes a prison the conservative justices can lock us all in whenever it suits them.
Originalism was a scam from the start, a foolproof methodology for conservatives to arrive at whatever judicial result matches their policy preferences: Cherry-pick a few quotes from the Federalist Papers, cite an obscure 1740 ordinance from the Virginia colony one of your clerks dug up, then claim that scripture leads us inexorably to only one outcome.