Originalism “ill-conceived twin of religious fundamentalism”
For the editor: As a religious studies professor at Cal State Bakersfield, I realized years ago that legal originalism is the ill-conceived twin of religious fundamentalism. (“How the plague of originalism is taking hold of the Supreme Court”, Opinion, September 6)
UC Berkeley Law School Dean Erwin Chemerinsky says, “Originalists choose from historical records to support whatever conclusion they want.” But in reality neither originalists nor fundamentalists use history, only texts out of context.
History involves context, context, context, and both fundamentalists and originalists ignore this.
In the Bible, Jesus says unequivocally that there is no divorce, period. But he also says in another passage that there can be no divorce “except for sexual immorality”.
So what is “original”? And what is the context? Scholars suggest that Jesus is trying to protect helpless women who, if divorced, could end up on the streets helpless.
In the Quran, the word “hijab” refers to a curtain separating male and female worshipers in the house of the Prophet Muhammad. Only later does it mean headgear. Context, context, context.
Originalism, like fundamentalism, is acontextual and ahistorical, and neither should determine how we live now.
Tim Vivian, Bakersfield
For the editor: Supreme Court originalists should be careful what they wish for. Embracing originalism consistently would greatly reduce the power and influence of the court.
The framers of the Constitution never made the judiciary more powerful than the legislative branch of the federal government. Instead, they gave Congress the power to control the extent of what the judiciary could do.
Congress has the power under the Constitution to increase or decrease the jurisdiction of the judiciary and could significantly limit the scope of the federal judiciary to its original jurisdiction, as the Constitution expressly states. Congress could restrict or entirely repeal the power of judicial review of legislation that the Supreme Court took upon itself in Marbury v. Madison in 1803.
If Congress did these things, much of the Supreme Court’s power would revert to the legislature, as the framers clearly intended. Congress would resume its primacy as the representative of the American public.
Yes, it’s politically impossible right now, but given the current political upheaval, anything can happen.
Eleanor Egan, Costa Mesa