Originalism Is Going to Get Women Killed

American law has not historically been good to women, and whatever progress there once was is now vulnerable to regression. This return is being midwifed into the world by the theory of constitutional interpretation known as originalism—the idea that a law’s constitutionality today is dependent on the Constitution’s purported “original public meaning” when the relevant constitutional text was enacted. Its adherents market originalism as fair and free from favor or prejudice—but its effects are not and will not be fair at all. By its very nature, originalism threatens women and other minority groups who were disempowered at the time of the Constitution’s adoption. We must instead develop a new constitutional interpretative method that protects all Americans as equal members of our democratic society.

Erwin Chemerinsky: Even the founders didn’t believe in originalism

The Fifth Circuit Court of Appeals demonstrated as much when it relied on originalism in United States v. Rahimi, a case about a law restricting the gun rights of domestic-violence offenders, last week. The central legal issue in Rahimi was not whether protecting women and children from gun violence is good; the court conceded that it is. Rather, the question before the court was whether protecting women and children from gun violence is constitutional. And the court concluded that it is not.

A three-judge panel unanimously ruled that the Second Amendment was violated by a federal statute that made possessing a gun unlawful for a person who is subject to a restraining order in protection of an intimate partner or child. Its explanation for this dangerous ruling was a straightforward application of originalism. The Founders mentioned a right to keep and bear arms in the Constitution. They did not, however, mention women, who are disproportionately victimized by domestic violence. And although today’s lawmakers may care about women’s rights, they cannot deviate from the Founders’ wishes without a formal constitutional amendment. This will almost assuredly have very real, potentially fatal consequences for women in America: The presence of a gun in a domestic-violence situation increases the risk of femicide by more than 1,000 percent. Originalism is going to get women killed.

United States v. Rahimi is the latest example of the intolerable hazard originalism poses to women’s lives and our democratic society. Originalist ideology glorifies an era of blatant oppression along racial, gender, and class lines, transforming that era’s lowest shortcomings into our highest standards. The country and the Constitution do not belong to the nation’s white and wealthy forefathers alone. But the consequence of chaining constitutional interpretation to a time when much of the country was much worse off and only a rarefied few held power is as foreseeable as it is deadly: Huge swaths of the population will be worse off once again. Originalism is fundamentally incompatible with a legal system interested in protecting the rights of all the nation’s people.

The law at issue in Rahimi survived multiple constitutional challenges in the Fifth Circuit prior to originalism’s intervention. The same circuit court most recently reaffirmed its legality in 2020 in United States v. McGinnis, holding that the statute was reasonably adapted to the compelling government interest of reducing domestic gun abuse. This would have directly foreclosed the argument made in Rahimi if not for the Supreme Court’s June 2022 decision in New York State Rifle & Pistol Association v. Bruen. In Bruen, the Court announced a strict new originalist standard for evaluating the constitutionality of laws regulating guns. A gun law is now valid only if it is “consistent with the Nation’s historical tradition of firearm regulation.” And even then, Justice Clarence Thomas wrote for the majority, “not all history is created equal.” (This is how the Bruen court justified striking down a law that had been on the books for more than a century.) The elected branches must prove to the judiciary that a sufficiently analogous regulation existed roughly 230 years ago, when the Second Amendment was adopted, or potentially 155 years ago, when the Fourteenth Amendment was adopted.

Thomas P. Crocker: Don’t forget the first half of the Second Amendment

There’s a certain level of absurdity to this exercise. The Supreme Court essentially disallowed the country’s lawmakers from developing new solutions to the national gun crisis and instead sent the people’s representatives on archival scavenger hunts. “When a challenged regulation addresses a general societal problem that has persisted since the 18th century,” Thomas wrote in Bruen, “the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment.” Instead of counseling “If it ain’t broke, don’t fix it,” originalism instructs “If it’s still broken, you still can’t fix it”—a prescription for permanent crises in America, unsolvable in the present because they were not solved in the past.

The government jumped through the required hoops and proffered various historical analogues for the statute at issue in Rahimi. All were rejected. The Fifth Circuit’s rationale for doing so was sometimes disturbing. The government pointed to laws in several colonies and states that disarmed classes of persons considered dangerous—namely, enslaved people and Indigenous people. The Fifth Circuit said that the domestic abusers’ restriction was insufficiently similar, because it disarms people after individualized findings of credible threats to other identified persons, whereas the historical laws disarmed classes of people deemed a threat to the political and social order. Put plainly, the law was held unconstitutional because it disarmed citizens for reasons other than the brazen enforcement of white supremacy.

That it would be challenging to identify colonial laws that took violence against women seriously is not a surprise. Indeed, not until 1920 was wife-beating made unlawful in every state. Finding no historical tradition of disarming people who abuse women, the Fifth Circuit is allowing them to keep their guns. The court concluded that the statute’s ban on domestic-violence offenders possessing guns is an “outlier that our ancestors would have never accepted.” Whose ancestors is unclear. The court does not say whether it includes the ancestors of the 4.5 million women alive today in the United States who have been threatened with a gun by an intimate partner. Or the hundreds of victims of gunmen who first committed acts of violence against the women in their life—a reliable bellwether for mass shootings. Originalism limits who gets to be a part of “our” and who is entitled to the Constitution’s rights and protections.

The country is ill-served by a judiciary that uplifts an alleged original understanding of the Constitution over the public interest and makes false claims of objectivity to obscure oppression. The first drafters of the document articulated important, inclusive democratic ideals but did not yet know how to live up to them. The courts must stop rejecting everything we’ve learned over hundreds of years and calling doing so wisdom. Lives quite literally depend on it.