Originalism and Today’s Supreme Court

In response to a recent DM, I received a fine video from my lawyer friend Peter Gabel where he discusses “Originalism and the Supreme Court.”

Peter Gabel
speaks on “Originalism,” a judicial philosophy of interpreting the American Constitution according to the meaning it would have had in the late 18th century.

I highly recommend his 35-minute video (shown at right) and will offer a brief summary here.  I confess also that I have been undergoing a lessening of respect for the legal profession of late.  I feel that profession is not doing a good job at policing itself or, it seems to me, educating young lawyers and has left me wondering what its purpose and values are (other than creating conflict and making money). 

In my book on The Reinvention of Work I propose that all professions need to reinvent and repurpose themselves in light of values and especially eco-values appropriate to the needs and the new cosmology of our time.  This work falls on the shoulders of active practitioners as well as scholars and teachers.

Of course this demand falls on clergy and seminaries as well and on teachers and educators also.  Indeed, half of my work has been to try to reinvent education and half has been dedicated to reinventing religion or, might we say, moving beyond religion to spirituality, which is or ought to be the essence of religion.  All professions, as I argue in my book, have to look in the mirror and reinvent themselves according to the new cosmology and post-modern sensibilities. 

Active members in the Federalist Society (L-R Top): Supreme Court justices Clarence Thomas, John Roberts, Samuel Alito (Bottom) Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett. Wikimedia Commons.

(One issue as I see it is that 1789 was not a time of evolutionary consciousness—that and Darwin came about in the late 19th century after all.  Which might explain why many originalists are anti-science. And evolution.) 

The Federalist Society, so instrumental in picking supreme court judges for recent Republican presidents, is not only overseen by an active Opus Dei manager, but holds “originalism” or original intent of the Framers as key.  Very large donors and money are involved too.  Such judges tend to see the moral advances of the sixties including civil, gay and women’s rights as “unconstitutional” because they weren’t in the eye of the (slaveholding) writers of the Constitution.

Some of Gabel’s very pertinent insights to the current state of the Supreme Court are these:  Six of the current Supreme Court judges believe in originalism—a concept he never encountered at all in law school from 1969 to 1972.  Instead, he learned that the constitution is an evolving document that evolved as political morality of the country evolved. 

What were they thinking? “Signing of the United States Constitution” showing George Washington, Benjamin Franklin, and Alexander Hamilton left to right in the foreground; painting Howard Chandler Christy. Wikimedia Commons.

The world view of 1789 was individualistic–a collection of “disconnected monads” make up the world (which sounds very Newtonian to me).  But today we are seeing the world as a web of interconnected beings—this view clashes with the former one as post-modern clashes with the modern (i.e. 1789).  Thus law in America has to contort itself to fit into the new paradigm.

But most of all, Gabel points out that the spiritual values behind movements like civil rights, women’s rights, union rights, gay rights, environmental rights–calling us to greater Love and Justice–are left out of the legal equation and clashes over individual rights carry the day legally speaking.  That is the uncomfortable place we find ourselves in today.

See Matthew Fox, The Reinvention of Work.  

To read the transcript of Matthew Fox’s video teaching, click HERE.

Banner image: Original document of the Constitution of the United States in its encasement in the Rotunda for the Charters of Freedom. Photo: National Archives.

Queries for Contemplation

Do Gabel’s observations about the world view of 1789 and the movement of Originalism shed light for you on the shortcomings in today’s discourse on many subjects including abortion? 

Recommended Reading

The Reinvention of Work: A New Vision of Livelihood For Our Time

Thomas Aquinas said, “To live well is to work well,” and in this bold call for the revitalization of daily work, Fox shares his vision of a world where our personal and professional lives are celebrated in harmony–a world where the self is not sacrificed for a job but is sanctified by authentic “soul work.”
“Fox approaches the level of poetry in describing the reciprocity that must be present between one’s inner and outer work…[A]n important road map to social change.” ~~ National Catholic Reporter

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28 thoughts on “Originalism and Today’s Supreme Court”

  1. Richard Reich-Kuykendall
    Richard Reich-Kuykendall

    Matthew, Today we begin by answering our Queries for Contemplation which are: “Do Gabel’s observations about the world view of 1789 and the movement of Originalism shed light for you on the shortcomings in today’s discourse on many subjects including abortion?” Yes, and I agree with the points that you make. First, in terms of reinventing work–whatever it may be–to have conscience towards other people, other nations, other generations, and the earth itself. You write, “One issue as I see it is that 1789 was not a time of evolutionary consciousness—that and Darwin came about in the late 19th century after all. Which might explain why many originalists are anti-science. And evolution.” Yes, and I saw this in an interview with Mike Huckabee when he was Governor of Arkansas. He said he was a creationist…meaning he did not believe that humans or the earth were the products of evolution. And though Huckabee was just a governor and not a Supreme Court judge, we find that six of the current Supreme Court judges believe in originalism, and as Matthew says, “Such judges tend to see the moral advances of the sixties including civil, gay and women’s rights as ‘unconstitutional’ because they weren’t in the eye of the (slaveholding) writers of the Constitution.” More than this, they leave out the spiritual value behind movements like civil rights, women’s rights, union rights, gay rights, environmental right, which call us to greater Love and Justice.

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    Richard, you say that judicial originalists “leave out the spiritual value behind movements like civil rights, women’s rights, union rights, gay rights, environmental right, which call us to greater Love and Justice.” They need to be reminded of Paul’s statement in Galatians 3:28-29: “There is neither Jew nor Greek, there is neither slave nor free man, there is neither male nor female; for you are all one in Christ Jesus.” The originalists under the influence of Opus Dei are bypassing the vision of Jesus, Paul as well as the new cosmology that we are all ONE. This fundamental and transcendental unity has proved to be difficult to realize in real time. It is something that the original authors of the Constitution could imply while not living themselves as misogynist slaveholders. Women, blacks and other races continued to face fierce opposition to their claims to equal rights. Progress has definitely been made in recent decades. But now it is clear that all women and blacks who have risen to power do not themselves honor the vision of unity.

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      Excuse me, Gwen. Is this what you meant to say? “But now it is clear that all women and blacks who have risen to power do not themselves honor the vision of unity.” Are you saying that powerful women and black people don’t honor unity? That’s not my experience–for example, William Barber? Lin-Manuel Miranda? Nancy Pelosi? Kirsten Gillibrand? John Lewis? Cesar Chavez? Martin Luther King, Jr.? Are you saying they don’t honor unity or did you misspeak? I’m just asking you to clarify your position in case you didn’t say what you meant to say.

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    Thank you for continually providing so much space for love to grow, Mathew. Today’s essay on Originalism was not only eye opening, but heart opening! Your always cosmic viewpoint provides the perfect backdrop to breathe the reality of today. I am not a scholar, and so appreciate those who are, as I chose to live inclusively and in community as best I can. No matter what system, ideology, jurisdiction, ecology, etc. it’s all about relationships and original blessing. Thank you for all the eye and heart openers.

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    Jeanette Metler

    I found the video clip by Gabel in today’s DM, to be very interesting and informative… which led to a deeper understanding of what is defined as Originalism. Like Gabel, I find the whole concept ludicrous. This led me to question what the root fears… the resistance… may be around the evolution of consciousness… which involves seeing the unfolding and evolving expressions and manifestations of this expansive natural movement and the emerging of this… and choosing to respond creatively and imaginatively to this … and then finding ways of integrating this into many areas of society… which benefits and blesses the whole of creation, not just humanity.

    Is it fear of anarchy… fear of chaos… fear of death, change and transformation… fear of loss of control and power over… fear of the loss of individuality… fear of the loss of morality and ethics… fear of God, based on Originalisms image of this? Is there a way to alleviate these fears, fabricated by those whom are held in the bondage of delusions of seperateness… deemed as Originalism, which is a distorted version and false vision of the original state and condition of humanity fallen from grace. What I see in Originalism is the whole cosmology story of fall, sin and redemption… which the originators of the constitution in the late 1800’s founded its ideals and concepts around… as this was the conscious awareness they were living at that time… which is so far removed from the cosmology story of the Original Blessing.

    Imagine for a moment what might happen, if all the civil rights movements in their various forms… united together in advocating for the recreation of a whole new constitution… which could potentially, through this creative and challenging process… address the fears of what Gabel calls the “Monads”… as well as help these one’s see a different perspective… a movement from the head… into the heart, soul and spirit of our true originalness and the blessings of this. Failure to engage in the reality of the natural movements of the evolution of consciousness, in truth, is merely going to bring about the very things they fear anyways.

    Either way, a paradigm shift in the evolution of consciousness will continue to unfold, evolve and emerge… and it’s movement will undoubtedly it seems be resisted in fear by some and embraced with love by others. This too will make for much tension… like those of labour pains and these contractions of tension will increase… inevitably leading to a breakthrough… just like the placenta that bursts before the new birth.

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    Thank you Matthew for reminding us that the spiritual wisdom traditions (and even modern quantum physics) teach us that God’s Loving Evolving Spirit is within us, and among us in our relations, Mother Earth and all Her creatures, and our multiverse Cosmos… We are All indeed interconnected~interdependent in our evolution with-in God’s Loving Diverse ongoing co-Creation… The tragedy in most of our destructive and suffering human history to the present day is that most patriarchal societies with its’ toxic masculinity (especially among world ‘leaders’) are ignorant with their individualistic and egocentric values of the Presence of the Loving Sacred within and among us in our relations, Mother Nature, and our evolving multiverse Cosmos….

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    Great lecture! Yes I feel as though liberalism and liberals are stuck between two worlds. Also the materialist left is missing the spiritual vision of our interconnectivity and very argumentative and divided. We need this vision of spiritual of interconnectivity in order to do a new politics.

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    Regarding efforts of SOME in the legal profession to improve its educational process, consider Rhonda V. Magee’s book–The Inner Work of Racial Justice: Healing Ourselves and Transforming Our Communities Through Mindfulness. It’s an inspired and inspiring effort and quite thought-provoking.

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    Olive Bolivar

    There is far too much in today’s DM and its accompanying video by Dr. Gabel to address adequately within the restrictions of a comment; so here are a few “penumbras” of thoughts that passed through my head when reading and listening:
    Alito’s justification for rescinding the rights of women: ” . . . abortion is never mentioned in the Constitution . . .” — Let us observe that neither is homosexuality, marriage, education, automobiles, almost any aspect of tort—these things are not **specifically** mentioned in the Constitution and, therefore, according to Alito and the rest of the Gang of Hacks (who are NOT prosecuting justice, but who are pursuing a radical rightwing political agenda) the US government cannot make law addressing anyone’s marriage (which would delegitimize or criminalize interracial and homosexual marriage– or any marriage at all disapproved by the religious convictions of the Gang and its followers), education, speed limits, or almost any of the aspects of normal life we accept today and therefore all precedent addressing any of these things is now subject to rescission by this political Gang. The single goal of this Gang is to cement radical and reactionary rightwing policy.
    The Constitution “originally” was written by white male property owners. They are the only people constitutionally allowed to vote because the “Founders” realized that if they tried to introduce voting rights into the original document they would have even greater difficulty in ratification. So the Gang of Hacks today, in upholding the “original” document can again assign voting rights as a state matter and rescind the 14th and 15th amendments.
    Alito’s opinion rescinding Roe violates A14 absolutely. It removes the right of full citizenship from every woman born or nationalized in this country.
    And lastly, for this post, this decision to strip women of their citizenship rights has the practical effect of a de facto establishment of religion, specifically forbidden in the ORIGINAL Constitution, and therefore belies their smug claim of fealty to originality. The majority of the Gang were nominated by an organization with strong religious ties; they themselves have strong religious affiliations they have publicly discussed many times; this decision cannot be considered by any neutral person as being based in constitutional law. It has no medical or scientific basis. It has been made based on the private religious convictions of this majority.
    And THAT is the establishment of religion. It is the anti-democratic intent of a group of religious fanatics who are systematically dismantling constitutional freedoms in order to enshrine, codify, and protect white male domination.
    I could go on for some time about the prospects of the next rightwing congressional majority passing law to codify the excission of women’s rights into law. About the distinct probability of further voting suppression and the anti-constitutional dispensation of government to the control of a small group of citizens. About the ways Justice Ginsberg would have strengthened the Roe decision.
    But I expect if anyone even got this far they’re sick of me by now!

    1. Richard Reich-Kuykendall
      Richard Reich-Kuykendall

      Olive, I’m not sick of you, in fact I feel that you have shared some important and vital information that we should all be aware of. Thank you so much for sharing !!!

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        Olive Bolivar

        Yes. It’s ok to copy and post. Please note it was written by a friend instead of posting my name. Frankly, I am afraid of these people.

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      Nope, not sick of you, just grateful that you express my own thoughts so clearly and eloquently. There is no question that my first amendment rights to freedom of religion, not to mention freedom of speech, assembly, and petition rights—are completely violated by this group of religious extremists on the Supreme Court and in many states. Their religious bigotry against abortion, LGBQT+ people, civil rights in general, unions, etc., etc. is clothed in manufactured concerns about some imaginary originalism–which sound a lot to me like biblical inerrancy.

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        Olive Bolivar

        I think you’re 100% right. This is devotion to a document they must believe to be inerrant in its original form–whether the Constitution or the bible. Such people are incapable of original thought and logical conclusion—and I do realize these people have passed a bar exam having completed a law degree which relies heavily on logical thinking—but also encourages and teaches methods of argument “outside the box,” argument that will credibly challenge accepted interpretation, whether it can hold water or not, hoping to create enough doubt to open the door for their intention.
        The legal strategy of the former president and most other people in his position is to “deny and sue,” strategy almost always based in fakery and bluff but made with the hope it will make a crack in actual reason enough to allow them a toehold to further embellish their (non) position.
        So this Gang of Hacks is blithering on about so-called “originalism” hoping to hook those who cannot actually interpret those points they’re misleading. Hoping we can’t understand that the original writing of the Constitution was never intended to be its final and forever form.
        Had it been intended never to change, there would have been no provision for amendment—which the *original* authors performed — TEN times — immediately!
        And also, they think we can’t read:
        “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Amendment IX of the Constitution of the United States.

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      Olive Bolivar

      DISCLAIMER: I have not read the opinion. My thoughts are based on reading many comments made by people who *have* read it–both those who agree and those who do not. (I find agreeing arguments facetious and lacking substance.)

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    It’s as if the ‘Originalists’ view the Constitution as Sacred Scripture; the inviolable word of God; absolute truth; that time stopped in 1789. This is a view that says Scripture is the word of God rather than that reality is the word of God. In this view the Founding fathers are presented as the prophets of the Old Testament speaking the word of God as ultimate, eternal truth, that shall not ever change.

    But the page on which God’s truth is written is not made of paper. God speaks through all of creation and every instant of time. And as God’s consciousness expresses itself, things change. Individuals, societies, civilizations, planets, stars, galaxies; all transform and grow and change, in the manner of God’s intent.

    And this change happens against the field of what already is. So even though the Conservatives can’t stop time as they wish they could, they do provide the balance, or the measure, against which the new changes take place. This is part of the divine creative process. There must be a field on which to generate the figure of change and growth.

    Ultimately, it all comes back to the divine source. The source defines all that is. And uses the contrasts between this and that; Conservative and Liberal; dark and light; full color (sunlight) versus fields of grey (moonlight). All of these are the ways that the divine draws the definition of its own being on the canvas of reality.

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      There’s a strange attitude among humans. It seems that we think we have control somehow; that we can set the rules; that we can make the world as it should be, corrected into its divine way of being. I think that’s wrong. We exist within a universe that far transcends of any of our individual capacities to comprehend or control. So, it’s not up to me to fix Reagan’s mess ups or to fix Obama’s mess ups. It’s up to me to live within the mystery of my local life. To try to understand it better. And to see what good I can bring into being within that realm.

      Washington, New York, San Francisco, London, Paris, Rome, Moscow, Mumbai, Tokyo, Beijing – all those places are far beyond any control I can exert. But what I can do is love the people around me. I can appreciate the trees and the flowers and the birds and the animals in my environment, and I can extend whatever help is in my grasp to those nearest to me who need it. I guess that’s just another way of saying think globally, act locally, but I feel overwhelmed by the idea of changing anything in the grand political scheme.

      1. Richard Reich-Kuykendall
        Richard Reich-Kuykendall

        Dana, It is important that you recall to our minds the saying, “think globally, act locally.” Having said this however you say you “feel overwhelmed by the idea of changing anything in the grand political scheme.” Well, I’m right there with you. It does feel overwhelming, so let continue to “think globally, act locally.”

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        Jeanette Metler

        Dana, I find your words, “think globally, act locally”, to be very inspiring! And I also agree with Richard, that although it seems a bit overwhelming, dealing with all of the things that humanity is facing… participating in ongoing conversations, like those of which unfold with the DM’s is important and valuable. Thanks everyone, for sharing… and Mathew and your DM team, for creating an enlightening forum to do so.

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    I have thought for quite a while that the right wingers would not be happy until we were all the way back into the 19th century–the times of the Robber barons, the wild west, slavery and the immediate repression of freed slaves, no labor laws, no restrictions whatsover on businesses, no consumer protection or any other protections of humans or the environment– when it was truly every man for himself (and an occasional woman). We are very close, it seems to me, when naked greed has outstripped every attempt to increase consciousness of our interbeing–Florida has a law which the governor is proud to call the “Anti-Woke” law—Proud! I pray for an increase in the already large and emerging groups of spiritually awakening people, and that they can merge and work together–but even there, there seems to be some dissension.

    1. Richard Reich-Kuykendall
      Richard Reich-Kuykendall

      Sue, I too “pray for an increase in the already large and emerging groups of spiritually awakening people, and that they can merge and work together…” No buts about it!

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        Let it be so. You may not be old enough to remember, but this is all the old “states rights” argument that was used to argue against desegregation in the 40’s and 50’s. They are a bit more sophisticated in forming and passing bills to disenfranchise folks, the poor, disabled, people of color, etc., all of whom would certainly vote against those currently in power. The white supremacists have a frightening number of people running for secretary of state in many states in an attempt to control the outcomes of elections. As everyone must know, the Florida governor has established a new election militia with the same goal. I pray that we can harness our spiritual power to deal with it.

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