While listening to a podcast* about Ruth Bader Ginsberg I was surprised to hear that she described herself as an originalist. That term, when used in connection with the courts, usually means that a judge interprets the Constitution by trying to divine the intentions of the framers. It has become shorthand for profound conservatism which seeks to keep the Constitution from evolving. I have always thought of originalism as an excuse for those in power to maintain the status quo. Antonin Scalia professed to be an originalist, as does his former clerk Amy Coney Barrett. To hear that Ruth Bader Ginsberg claimed this descriptor shocked me, until a more complete explanation was offered. It seems that the original idea she subscribed to was the one articulated in the Declaration of Independence....that all men are created equal. She felt that this statement was the bedrock of the whole American enterprise which all subsequent law should advance and uphold. She understood that this has never yet been achieved here, but used the word "embracive" to describe the values the Declaration of Independence first articulated to the world as the ground upon which the former colonies would be constituted as a new country, no longer adhering to the old hierarchies of Europe. We forget now how revolutionary this was at the time. Justice Ginsberg noted that the framers ideas were limited about who was equal (men of property), but pointed out that the impetus to expand government beyond the rigid boundaries of monarchy to regular people released an ongoing trend to more and more inclusion. Now "all men" has metamorphosed into "everyone" by the continued (although slow and uneven) application of that original idea which she, and Abraham Lincoln before her, found most important. The essential equality of every human as the guiding light of our governing system gives us an evergreen ideal to reach for as we attempt to live together. Seen this way, I am an originalist too.
One more day until the election.
A side note: I don't remember where I read it, but I keep flashing on what someone said about the French revolutionary cry of Liberte, Egalite, Fraternite: that liberty and equality are powerful ideas but sometimes work at cross purposes. That's when fraternity becomes necessary and important.
* Amicus, with Dahlia Lithwick, September 21, 2020. "A Conversation about Conversations with RBG"