Yeah, he's pretty crafty.
> if the people don't like the social contract (i.e. the constitution), the people should change it via amendments vs having judges change it.
This only makes sense when you dovetail it with originalism. The Bill of Rights isn't supposed to grow infinitely. Madison didn't even want it (if you're into appeal to authority to Founders). But when you make the dual arguments of:
- the Constitution only means what it literally says, according to its time period
- the only way to expand interpretation is to literally change it with Amendments
you completely ignore the 9th and 10th Amendments.
Originalism is largely a smoke-screen to roll back rights. Dobbs is a great example of this, it heavily relies on "eminent common-law authorities" (only eminent as the result of conservative opinions pushing them into the catalog):
"We begin with the common law, under which abortion was a crime at least after “quickening”—i.e., the first felt movement of the fetus in the womb, which usually occurs between the 16th and 18th week of pregnancy."
Concluding:
"The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions."
Well, the problem with the originalist take on this is: women. couldn't. vote. End of debate! Haha.
It's probably also worth saying our understanding of medicine, conception, and pregnancy was pretty rudimentary back then. Why in God's name would we look back to that time period for wisdom on this?
Well, it's because in those days "it was a crime". Pretty convenient.
> I think he would say he did not "essentially writes out slavery..." but rather the 13th, the 19th amendments etc. wrote those out of the constitution.
He doesn't incorporate this into his analysis though. Here's what he writes in Heller regarding "Right of the People" in 2A (he quotes a Rehnquist opinion he concurred with to start):
"‘"[T]he people" seems to have been a term of art employed in select parts of the Constitution… . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.'
This contrasts markedly with the phrase 'the militia' in the prefatory clause. As we will describe below, the 'militia' in colonial America consisted of a subset of 'the people'—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to 'keep and bear Arms' in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as 'the people.'"
His argument is that "the people" means "everyone", and that "the militia" only meant "male, able bodied, and within a certain age range". But "the people" actually only meant white, land-owning men; it excluded women, free Black Americans (largely denied the franchise), and Native Americans.
I think you would probably argue that, OK sure 1789 wasn't wonderful if you weren't a white guy, but we can extrapolate, now that the franchise and civil rights have been extended and incorporated to the States, that "the people" means everyone.
But this is exactly the opposite of what Scalia's arguing. He's saying because "the people" meant everyone, we must understand 2A as applying to everyone. In doing so, he ignores that 2A allowed white men to be armed, but did not allow women, free Black Americans or Native Americans to be armed. "The people" absolutely did not mean everyone, and the Founders were well aware.
In short, he ignores the fundamentally oppressive construction of the Constitution when it was written, and substitutes an imaginary regime where all enjoyed the right to bear arms. It was never so, and hearkening back to such a non-existent time is a daydream.
Such is the problem with originalism. It idealizes men and a time period that were far from ideal. Looking to this period for wisdom inevitably starts to strip rights away from marginalized groups. And that's what we're seeing here.