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11/04/2021

John McGinnis on Originalism and the Supreme Court's 2021-2022 Term
Michael Ramsey

At Law & Liberty, John McGinnis: Originalism Tested.  From the introduction: 

This term at the Supreme Court promises to be the most substantial test of originalism since its reemergence as a constitutional jurisprudence in the latter part of the last century. For the first time, originalists form a majority on the Court. Justices Thomas, Gorsuch, and Barrett are long-time originalists. Justice Alito has recently declared himself an originalist, and Justice Kavanaugh has strong originalist tendencies.

Yet as the originalist band of justices has grown, so too have the attacks on originalism. During Barrett’s confirmation, Senator Markey labeled it “racist, sexist, and homophobic.” And this slur is not idle chatter. Many senators and commentators advocate court packing that would deprive originalists of a working majority. And, likely in reaction to such political assaults, polls show that the Court has lost support, although it remains more popular than the other branches of government.

The strength of originalism inside the Court and the marshaling of opposition outside its walls would make for drama at any time. But this term features at least three controversial cases—all to be argued before the end of 2021—where originalism should be decisive. The term’s central question is thus whether the Court majority can interpret the law as written even as others press for the law’s distortion.

Professor McGinnis' "three controversial cases ... where originalism should be decisive" are New York Rifle & Pistol, Dobbs, and the more-obscure Carson v. Makin.  On the first: 

The New York law [in New York Rifle & Pistol] prohibits the vast majority from bearing arms, permitting the activity as a privilege for a select few. If it were to be upheld, the Second Amendment would become a right unlike any other in the Constitution—one that can be restricted to those chosen by the government.

...

Thus, the hard question in this case is not whether the statute should be upheld but whether an originalist court will have the courage to strike it down. Heller and McDonald did not take as much courage, because only a handful of jurisdictions prohibited the holding of guns inside the home and because such a restriction was nationally so unpopular. More jurisdictions heavily regulate carrying outside the home. Previously, the Court has symbolically vindicated the original meaning of the Constitution, as when it invalidated the Gun-Free Schools Act as beyond Congress’s power under the Commerce Clause, only to pull back when it came to more consequential statutes, like drug laws, in Gonzales v. Raich. But with many more thoroughgoing originalists on the Court today, I remain optimistic that the Second Amendment will not be relegated to mere symbolism.

And on Carson:

Maine gave tuition assistance to parents in areas without public schools so that their children can attend private schools. But Maine also restricted the use of this assistance to attending schools that are not “sectarian.” Thus, students can attend secular private schools or even schools associated with a religious institution, but not schools where, in the judgment of the state officials, the instruction is too religiously oriented.

Previously, the Supreme Court has held that a state cannot discriminate in providing funds to parents based on the religious “status” of schools. The question here is whether the states can discriminate based on the religious content of the education they deliver. Like the Second Amendment, the meaning of the words of the Constitution is telling. They show that the state cannot so discriminate. 

I agree that these are the Court's main originalism-implicating cases so far this term -- it is an oddly light term for originalism despite the enormous originalist prominence of Dobbs and New York Rifle.