On “the magical founders”

In response to Barrett, a pretty great op-ed in the NYT.

This is the main point I’ve ever harped on with the “Originalism” thing. The equal protection clause of the 14th amendment fundamentally changes the entire constitution. it touches every word that comes before it. To talk about the “original public meaning” of, say, the bill of rights without discussing how this was changed by the 14th amendment is to be utterly and completely full of shit, IMO.

There are many toxic stews that exist in American’s heads, good and bad, and one of them is this thought of the Founders as Lycurgus, giving us this perfect, unimprovable system validated by their deep and infinite wisdom, rather than politicians working within the political constraints of their era, that created a deeply unstable young country that outright fell apart within 80 years of its founding. In the context of the 1790s, you can certainly point to some accomplishments (and egregious failings), but in order to do that, you have to be willing to see that what was passed down from that era, with the aid of retrospect, was not perfect for their time, much less from ours.

And when you interpret the constitution, you have to not only factor in the original document, but the leanred wisdom that came from generations that came after 1790, and saw that the system was deeply flawed, and had to be changed. And that those people didn’t get it right, either.